IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE20H DAY OF APRIL2021BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM W.P.NO.107510/2017 (LB-RES) BETWEEN: BASAVARAJ BHIMAPPA ILLIGER AGE:55 YEARS, OCC: AGRICULTURE & BUSINESS, R/O1826, VIDYA NAGAR, 1ST CROSS, GOKAK, BELAGAVI DISTRICT. ... PETITIONER (BY SRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY TO DEPARTMENT OF URBAN DEVELOPMENT M.S.BUILDING, BENGALURU-560001 2. BELAGAVI URBAN DEVELOPMENT AUTHORITY BELAGAVI BY ITS COMMISSIONER. ... RESPONDENTS (BY SMT K.VIDYAVATHI, AGA & SRI.V.S.KALASURMATH, HCGP FOR R1; SRI.M.A.HULGAL, ADVOCATE FOR R2) THIS PETITION IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DATED:
05. 06.2007 PUBLISHED IN OFFICIAL GAZETTE ON1406.2007 ISSUED BY2D RESPONDENT VIDE ANNEXURE-A BY ISSUING A WRIT OF CERTIORARI AND ETC., THIS PETITION COMING ON FOR DICTATING ORDER
S THIS DAY, THE COURT MADE THE FOLLOWING:
2. ORDER
The captioned writ petition is filed seeking a writ of certiorari to quash the impugned notification dated 05.06.2007 published in Official Gazette of 14.06.2007 issued by the respondent No.2 as per Annexure-A. The petitioner is also seeking a writ in the nature of mandamus to issue direction to the respondents to issue NOC to enable the petitioner to utilize the petition lands.
2. The facts leading to the case are as under: The petitioner claims to be the owner of agricultural lands bearing Sy.No.173/7 measuring 39 guntas situated at Hindalga Village. The petition lands were notified for acquisition in favour of respondent No.2 for the purpose of formation of residential layout. The petitioner claims to have purchased the lands by virtue of sale deed dated 17.03.2012. The grievance of the petitioner before this Court is that though the petition lands were proposed to be acquired way back in 2007, however, the respondent No.2 3 has never published in the Official Gazette notifying the lands in question for acquisition. Though preliminary notification is of the year 2007, there is absolutely no progress in issuance of final notification under Section 19 of the Karnataka Urban Development Authorities Act, 1987. The petitioner also claims that since the respondent No.2 has failed to issue final notification within the reasonable time, the impugned notification issued under Section 17 has become unenforceable. It is also stated that the petition lands are designated and reserved for residential purpose in the master plan published by the respondent No.2. The petitioner on the premise that the respondent No.2 has virtually abandoned the scheme, submitted an application on 12.09.2016 as per Annexure-C requesting the respondent No.2 to issue NOC for utilizing the lands in question for residential purpose.
3. The petitioner is before this Court on account of inaction on the part of the respondent No.2 in not 4 considering the representation. Therefore, the petitioner has sought for writ of certiorari to quash the preliminary notification issued under Section 17 as per Annexure-A proposing to acquire the petition lands. The petitioner has also sought for a writ of mandamus to direct the respondents to issue NOC.
4. On receipt of notice, the respondent No.2 has filed statement of objections. At paragraph 3 of the statement of objections, the respondent No.2 has questioned the locus standi of the present petitioner in questioning the preliminary notification issued by the respondent No.2. The respondent No.2 has contended that the petitioner was not the owner of the land in question as on the date of issuance of preliminary notification. It is also contended that the petitioner has purchased the petition lands on 17.03.2012 which is subsequent to issuance of the impugned notification as per Annexure-A. Therefore, a contention is raised in the statement of 5 objections that the sale deed dated 17.03.2012 is null and void. At paragraph 5 of the statement of objections, the respondent No.2 has contended that the respondent No.2 has made several correspondence to the office of the Assistant Director of Land Records, Belagavi calling upon the said authority to conduct joint measurement of lands included in scheme No.59. The respondent No.2 has also taken a contention that under the Karnataka Urban Development Authorities Act, 1987, there is no limitation prescribed for issuance of final declaration under Section 19(1) of the said Act. It is also stated at paragraph 6 that the provisions of Land Acquisition Act which provide for time frame for compliance and consequences of default thereof, are not applicable to the acquisition under BDA Act, 1976.
5. Placing reliance on the judgment rendered by the Hon'ble Apex Court in Bangalore Development Authority and Another vs. State of Karnataka and 6 Another reported in (2018) 9 SCC122 the respondent No.2 has taken a contention that the acquisition proceedings initiated by the respondents would not lapse as claimed by the petitioner and therefore, on account of non-issuance of final notification within the reasonable time, the notification under Section 17 would not become unenforceable and therefore, the writ petition is liable to be dismissed.
6. The respondent No.2 has also filed additional statement of objections on 31.03.2021. In the additional statement of objections, the respondent No.2 has contended that the objections tendered by the petitioner have been considered by the respondent No.2-authority in its meeting held on 03.05.2011 and in the said meeting, it is resolved to acquire the said land in the ratio of 60:40 by calling upon the land owners as per the provisions of the Karnataka Urban Development Authorities (allotment of sites in lieu of lands acquired) Rules, 2009. It is also 7 stated that there was joint measurement of lands of Hindalaga Village included in Scheme No.59 which is pending before the Assistant Director of Land Records.
7. Learned counsel for the petitioner would vehemently argue and contend before this Court that insofar as objections raised by the respondent No.2 in regard to locus standi of the petitioner in questioning the preliminary notification is concerned, the same is not tenable. Learned counsel appearing for the petitioner would place reliance on Section 4 of the Karnataka Land (Restriction on Transfer) Act, 1991. Placing reliance on Section 4, he would submit to this Court that the restriction on land owner to deal with the property would arise only after final declaration is published under Section 19 of the Bangalore Development Authority or under Section 19 of the Karnataka Urban Development Authorities Act, 1987. By relying on the said sections, learned counsel for the petitioner would submit to this Court that the respondent 8 No.2 having issued a preliminary notification under Section 17 has not taken it further by issuing final declaration and therefore, there is no vesting of land with the respondent No.2. Therefore, the petitioner’s vendor had every right to deal with the property and therefore, though the sale deed is subsequent to preliminary notification, however, the same would not render the sale deed null and void in view of Section 4 of the above said Act.
8. Learned counsel to buttress his arguments has also placed reliance on the judgment passed by a Co- ordinate Bench of this Court in K.P.Ravikumar vs. The State of Karnataka and Others rendered in W.P.No.9300/2020. This Court in an identical case while dealing with the acquisition under the Karnataka Industrial Areas Development Act, 1966 has dealt with the provisions of Section 4 of the Karnataka Land (Restriction on Transfer) Act, 1991. The Co-ordinate Bench of this Court was of the view that even if there is a proposal to acquire 9 the land, it is only after publication of declaration under Section 28(3) of the said Act, the land specified in the said final declaration cannot be transferred without permission from the competent authority. The Co-ordinate Bench was also of the view that there cannot be an indefinite embargo on the owner of the land to alienate his land. Even though the petitioner in the said writ petition purchased the land in question after publication of preliminary notification, the Court was of the view that the same would not render the same to be void ab initio. This Court on the same set of reasonings, allowed the writ petition and the impugned notification issued by the respondent therein under Section 28(1) of the KIAD Act, 1966 was quashed.
9. Learned counsel has also placed reliance on the judgment rendered by this Court in W.P.Nos.103162- 103164/2014. The ratio laid down by this Court in the above said writ petitions would put at rest all the controversies. He would submit to this Court that the facts 10 in the said judgment are identical to the present case on hand. Placing reliance on the said judgment, learned counsel would submit to this Court that this Court was pleased to quash the preliminary notification and a mandamus was also issued to the respondent authorities to issue NOC. This order is confirmed by the Division Bench in W.A.No.100088/2015. Learned counsel by placing reliance on this judgment would submit to this Court that the respondent No.2 by merely publishing in the Official Gazette notified the lands, however, cannot squat over the petition land. He would submit to this Court that even if no time limit is prescribed, the authorities cannot prescribe their own time to complete the acquisition proceedings. If the law do not specify the time limit within which the act has to be completed, it is trite law that it is to be done within a reasonable time. On these principles, to buttress his argument in this regard, he has placed reliance on the judgment rendered by this Court in W.A.No.30044/2013. On these set of counts, he would submit to this Court that 11 the preliminary notification issued by the respondent No.2 way back in 2007 is not at all sustainable and therefore, would request this Court to quash the impugned notification as per Annexure-A. Secondly, he would request this Court to direct the respondent No.2 to issue NOC to enable the petitioner to utilize the land for residential purpose.
10. Per contra, learned counsel for the respondent No.2 by reiterating the defence set up in the statement of objections as well as the additional statement of objections would contend before this Court that once the authorities notify a land under Section 17, the land owner has no locus standi to meddle with the property. He would reiterate the contentions raised in the statement of objections that the sale deed in favour of the petitioner is null and void since the same is executed by the erstwhile owner subsequent to issuance of preliminary notification. To buttress his argument, he has placed reliance on the judgment 12 rendered by the Hon’ble Apex Court in Bangalore Development Authority and Another vs. State of Karnataka and Another reported in (2018) 9 SCC122 11. Heard the learned counsel for the petitioner and the learned counsel for the respondent No.2 as well as the learned HCGP.
12. The petition lands were notified by the respondent No.2 vide notification dated 05.06.2007. Having issued the preliminary notification by invoking the provisions of Section 17 of the Karnataka Urban Development Authorities Act, 1987, the respondent No.2 was required to adopt the further course of action by issuing a final declaration under Section 19 of the above said Act. This preliminary notification was issued in 2007. Till this date, the respondent No.2 has not taken any steps to issue final declaration. Even final declaration is not issued by invoking the provisions under Section 19 of the 13 Act. As rightly argued by the learned counsel for the petitioner, there is no embargo or restriction on the land owner to deal with the property as contemplated under Section 4 of the Karnataka Land (Restriction on Transfer) Act, 1991. It would be useful for this Court to refer to the said Section which would have a bearing on the present lis between the parties and the same is culled out as follows:
"4. Regulation of transfer of lands in relations to which acquisition proceedings have been initiated- No person shall, except with previous permission in writing of the competent authority, transfer, or purport to transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in any urban area which is proposed to be acquired in connection with the Scheme in relation to which the declaration has been published under Section 19 of the Bangalore Development Authority Act 1976 or Section 19 of the Karnataka Urban Development Authorities Act, 1987.
13. On bare reading of Section 4 of the above said Act, it is clearly evident that the embargo on the land owners in transferring the property by way of sale, mortgage, gift, wills or otherwise would arise only when a 14 final declaration is published under Section 19 of the Karnataka Urban Development Authorities Act, 1987. Admittedly, in the present case on hand, though the preliminary notification is of the year 2007, the respondent No.2 for reasons better known to them, have not taken steps to issue final declaration till this date. Therefore, the contention of the respondent No.2 that the sale deed executed by the erstwhile owner in favour of petitioner under registered sale deed dated 17.03.2012 is void ab initio cannot be acceded to. The embargo or restriction would come into play only after the authorities issue final declaration under Section 19. Mere issuance of preliminary notification would not in itself lay any embargo and the same is evident from Section 4 of the Karnataka Land (Restriction on Transfer) Act, 1991.
14. The next question that has to be considered by this Court is whether the respondent No.2 having failed to issue final declaration can still lay a claim over the petition 15 lands on the premise that the preliminary notification is issued and respondent No.2 is contemplating to implement the scheme after securing joint measurement from the office of the Assistant Director of Land Records. If the statement of objections is examined, this Court would find that the respondent No.2 has come out with a stand that they have already sent a communication to the office of the Assistant Director of Land Records. Even this exercise appears to have been taken only after receipt of notice by this Court. An identical issue had come up for consideration before this Court in W.P.Nos.103162-103164/2014. This Court having dealt with the contentions raised by the authority was of the view that if there is an intention expressed by the authorities proposing to acquire a particular land, the authorities are required to complete the acquisition process by issuing a final declaration and determine the compensation. The Court also took into consideration the apprehension raised by the respondent- authority that if No objection certificate is granted and 16 petitioner puts up construction and if subsequently lands are notified for acquisition, there is every possibility that landlord may claim higher value. Having dealt with all these defence, this Court was of the view that if there is no final declaration, the land owners are free to develop the lands in accordance with law. This order passed by the Co- ordinate Bench of this Court is confirmed by the Division Bench in W.A.No.100088/2015.
15. Though learned counsel for respondent No.2 has placed reliance on the judgment rendered by the Hon’ble Apex Court in Bangalore Development Authority vs. State of Karnataka, however, on meticulous examination of the facts in the said case, I am of the view that the facts in the present case on hand are totally different and the proposition laid down by the Hon’ble Apex Court with due respect are not applicable to the present case on hand. That was a case where the owner of the lands in question had approached the High Court and filed batch of writ 17 petitions. The Hon'ble Apex Court found that there was a large number of irregularities during the course of enquiry under Section 18(1) of the BDA Act. The Apex Court was of the view that there was exclusion of 498 acres of lands and this lead to enquiries by the State Government. The Apex Court was of the view that the proceedings initiated by the land owners were tainted with malafides and the litigations were fought on frivolous ground and it was not a bona fide litigation. In this background, the Hon’ble Apex Court was of the view that delay in issuing final declaration under the provisions of the BDA would be of no consequence since the delay was caused at the instance of the land owners. However, such a situation does not arise in the present case on hand. In the present case on hand, there is total inaction on the part of respondent No.2 in not issuing a final declaration.
16. On perusal of the material on record, this Court would find that the respondent No.2 has virtually 18 abandoned the scheme and therefore, if the respondent No.2 has failed to issue final declaration under Section 19, the land owners cannot be left remedyless and their valuable rights in the property cannot be taken away on the premise that the preliminary notification is issued and the authorities are contemplating to implement the scheme by issuing final declaration. The preliminary notification is of the year 2007 and we are in 2021. It would be gross injustice if this Court does not interfere and adjudicate the grievance of the petitioner whose properties are notified by respondent No.2-authority by way of preliminary notification thereby taking away the valuable rights of the petitioner in dealing with the property in accordance with law.
17. The State and the authorities have the power of eminent domain and have an eminent power to take an appropriate property belonging to an individual citizen for public purpose. In the case of Harikrishna Mandir Trust 19 vs. State of Maharashtra and Others1, it is held by the Hon'ble Apex Court that the State and the Authorities cannot deprive citizens of his property rights and if allowed will be violative of Article 300A of the Constitution of India. Article 31 of the Constitution of India (prior to Forty fourth Amendment Act, 1978) used to impose a similar limitation on the power of eminent domain. But the new Article 300A only imposes one restriction and this power is the authority of law. Therefore, it is clearly evident that the State or the local authority for the public purpose can propose to acquire a private property and it is obvious that such deprivation will have the force of law only when it is for public welfare and is just, fair and reasonable and the owner of the property is adequately compensated.
18. In a recent judgment rendered by the Hon'ble Apex Court in the case of Vidya Devi vs. State of Himachal Pradesh2, the Hon'ble Apex Court has held that 1 (2020) 9 SCC3562 Civil Appeal No.6061/2020 20 the right to own a private property is a human right and cannot be denied. The party/State/Authority depriving right to property must have a authority of law. In the present case on hand, the respondent/authority has proposed to acquire the petition land by issuing a preliminary notification way back in 2007 but have not concluded the acquisition proceedings by issuing a final declaration as contemplated under section 19 of the Karnataka Urban Development Authorities Act, 1987. Therefore, though respondents have proposed to acquire the petition land to come up with a residential layout, the records would clearly indicate that the authority have not acted in a fair and reasonable manner. Since final declaration is not issued, the petitioner cannot claim compensation. At the same time, the respondents are still claiming that there is a proposal to acquire the petition lands. There is gross inaction for a period of 14 years. Therefore, the petitioner who has a constitutional right has approached this Court by invoking the jurisdiction of this 21 Court under Article 226 of the Constitution of India. The fact that the respondent No.2 has failed to acquire the lands by issuing final declaration, this Court would not hesitate to hold that the entire scheme is abandoned and if petitioner is not permitted to utilize the lands, would virtually result in miscarriage of justice.
19. For the reasons stated supra, I pass the following: ORDER
The writ petition is allowed. The impugned preliminary notification as per Annexure-A is quashed. The respondent No.2 is directed to issue NOC to enable the petitioner to utilize the lands in accordance with law. This exercise shall be done within a period of three months from the date of receipt of a copy of this order. Sd/- JUDGE CA