Ningappa S/o Mallappa Walikar Vs. The State Of Karnataka - Court Judgment

Excerpt:
- 1 - nc:2024. khc-d:14142 wp no.101473 of 2023 c/w wp no.104671 of 2023 in the high court of karnataka, dharwad bench dated this the27h day of september, 2024 r before the hon'ble mr. justice h.p.sandesh writ petition no.101473 of2023(gm-slum) c/w writ petition no.104671 of2023(gm-slum) in wp no.101473 of2023 between ningappa s/o. mallappa walikar @ talwar, age:65. years, occ: agriculture, r/o. ayodhya nagar, old hubli, tq: hubballi, dist: dharwad-580024. ...petitioner (by sri. santosh b. malligawad, advocate) and1 the state of karnataka, r/by its principal under secretary-2 , dept. of housing, m.s. building, dr. ambedkar veedhi, bengaluru-01.2. the commissioner karnataka slum clearance board, no.55, abhaya complex, 3rd floor, risaldar street, sheshadripuram, bengaluru-560020.3. the.....

Judgment:

- 1 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE27H DAY OF SEPTEMBER, 2024 R BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH WRIT PETITION No.101473 OF2023(GM-SLUM) C/W WRIT PETITION No.104671 OF2023(GM-SLUM) IN WP NO.101473 OF2023 BETWEEN NINGAPPA S/O. MALLAPPA WALIKAR @ TALWAR, AGE:

65. YEARS, OCC: AGRICULTURE, R/O. AYODHYA NAGAR, OLD HUBLI, TQ: HUBBALLI, DIST: DHARWAD-580024. ...PETITIONER (BY SRI. SANTOSH B. MALLIGAWAD, ADVOCATE) AND1 THE STATE OF KARNATAKA, R/BY ITS PRINCIPAL UNDER SECRETARY-2 , DEPT. OF HOUSING, M.S. BUILDING, DR. AMBEDKAR VEEDHI, BENGALURU-01.

2. THE COMMISSIONER KARNATAKA SLUM CLEARANCE BOARD, NO.55, ABHAYA COMPLEX, 3RD FLOOR, RISALDAR STREET, SHESHADRIPURAM, BENGALURU-560020.

3. THE ASSISTANT EXECUTIVE ENGINEER, KARNATAKA SLUM CLEARANCE BOARD, 1ST SUB-DIVISION, (TOL-NAKA), JANNAT NAGAR, DHARWAD-04.-. 2 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 4. THE DEPUTY COMMISSIONER, OFFICE OF DEPUTY COMMISSIONER, DHARWAD -01. …RESPONDENTS (BY SRI. KESHAVAREDDY, AAG ALONG WITH SRI. PRAVEEN K. UPPAR, AGA, FOR R1 & R4; SRI. RAVIRAJ C. PATIL, ADV. FOR R2 & R3) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI QUASHING THE NOTIFICATION BEARING No.VAE/113/SBM2020, BENGALURU LAND AND SY.NO.37/2B DATED1104/2022 ISSUED BY RESPONDENT NO.1 IN SO FOR AS PETITIONER IS CONCERNED VIDE ANNEXURE-K; ISSUE A WRIT IN THE NATURE OF MANDAMUS DIRECTING THE RESPONDENTS TO TAKE FURTHER STEPS PURSUANT TO THE NOTIFICATION DATE1611/2018 BEARING No.VAE-134-KOMAME-2018 PASSED BY RESPONDENT NO.1 VIDE ANNEXURE-F. IN WP NO.104671 OF2023 BETWEEN HANUMANTHAPPA S/O. NINGAPPA TALAWAR @ WALIKAR, SINCE DECEASED BY HIS LRS1 CHANNABASAVVA W/O. HANAMANTHAPPA TALAWAR @ WALIKAR, AGE:

75. YEARS, OCC: HOUSEHOLD, R/O. BOMMAPUR, CHINDI ONI, HUBBALLI TQ: HUBBALLI, DIST: DHARWAD-580028.

2. YALLAMMA @ YALLAVVA W/O. MARUTI BAIRAPPANAVAR, AGE:

50. YEARS, OCC: HOUSEHOLD, R/O. BOMMAPUR, CHINDI ONI, HUBBALLI TQ: HUBBALLI, DIST: DHARWAD-580028.-. 3 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 3. KASTURI @ KASTUREVVA W/O. HANUMANTHAPPA MANNAGI, AGE:

48. YEARS, OCC: HOUSEHOLD, R/O. BOMMAPUR, CHINDI ONI, HUBBALLI TQ: HUBBALLI, DIST: DHARWAD-580028.

4. FAKKIRAMMA @ LAXMI W/O. MANJU @ MANJUNATH HEBSUR, AGE:

46. YEARS, OCC: HOUSEHOLD, R/O. BOMMAPUR, CHINDI ONI, HUBBALLI TQ: HUBBALLI, DIST: DHARWAD-580028.

5. ANNAPURNA W/O. NINGAPPA TALAWAR @ WALIKAR, AGE:

44. YEARS, OCC: HOUSEHOLD, R/O. BOMMAPUR, CHINDI ONI, HUBBALLI TQ: HUBBALLI, DIST: DHARWAD-580028.

6. KUMAR S/O. NINGAPPA TALAWAR @ WALIKAR, AGE:

32. YEARS, OCC: STUDENT, R/O. BOMMAPUR, CHINDI ONI, HUBBALLI TQ: HUBBALLI, DIST: DHARWAD-580028.

7. RAVI S/O. NINGAPPA TALAWAR @ WALIKAR, AGE:

28. YEARS, OCC: STUDENT, R/O. BOMMAPUR, CHINDI ONI, HUBBALLI TQ: HUBBALLI, DIST: DHARWAD-580028. THE PETITIONER NO.1 TO4AND7ARE REPRESENTED BY THEIR GPA HOLDER PETITIONER NO.6 KUMAR S/O NINGAPPA TALAWAR @ WALIKAR. ...PETITIONERS (BY SRI. VIJAYENDRA BHIMAKKANAVAR, ADVOCATE) - 4 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 AND:

1. THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY/UNDER SECRETARY, DEPARTMENT OF HOUSING SECRETARIAT, GOVERNMENT OF KARNATAKA, VIKAS SOUDHA, II FLOOR, BENGALURU-560001.

2. THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, BOARDS AND MUNICIPAL ADMINISTRATION, VIKAS SOUDHA, BENGALURU-560001.

3. THE STATE OF KARNATAKA, REPRESENTED BY ITS ADDL. CHIEF SECRETARY, DEPARTMENT OF FINANCE, BOARDS AND MUNICIPAL ADMINISTRATION, VIKAS SOUDHA, BENGALURU-560001.

4. THE KARNATAKA SLUM DEVELOPMENT (CLEARANCE) BOARD, REPRESENTED BY ITS COMMISSIONER, NO.55, ABHAYA COMPLEX, 3RD FLOOR, RISALADAR COMPLEX, SHESHADRIPURAM, BENGALURU-560020.

5. THE DEPUTY COMMISSIONER, DHARWAD, DIST: DHARWAD-580001.

6. THE ASSISTANT COMMISSIONER, SUB-DIVISION, DHARWAD, DIST: DHARWAD-580001.

7. HUBBALLI-DHARWAD MUNICIPAL CORPORATION (HDMC), REPRESENTED BY ITS MUNICIPAL COMMISSIONER, LAMINGTON ROAD, HUBBALLI-580020.-. 5 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 8. THE EXECUTIVE ENGINEER THE KARNATAKA SLUM DEVELOPMENT (CLEARANCE) BOARD, 1ST SUB-DIVISION, TOLL NAKA, DHARWAD, DIST: DHARWAD-580004. …RESPONDENTS (BY SRI. KESHAVAREDDY, AAG ALONG WITH SRI. PRAVEEN K. UPPAR, AGA, FOR R1, R2, R3, R5 & R6; SRI. RAVIRAJ C. PATIL, ADV. FOR R4 & R8; SRI. C.S. PATIL, ADV. FOR R7) --- THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED NOTIFICATION BEARING NO.VAE113 SBM2020 BENGALURU, DTD. 11-04-2022 VIDE ANNEXURE-L ISSUED/PASSED BY THE RESPONDENT NO.1, IN THE INTEREST OF JUSTICE AND EQUITY; ISSUE WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED REPORT BEARING NO.ASHRAYA/VEVA-03/2021-22, DTD. 23-03-2022 VIDE ANNEXURE-H SUBMITTED BY THE RESPONDENT NO.6, IN THE INTEREST OF JUSTICE AND EQUITY; ISSUE WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED REPORT BEARING NO.RP-2/2020, DTD. 25-03-2022 VIDE ANNEXURE-J SUBMITTED BY THE RESPONDENT NO.5, IN THE INTEREST OF JUSTICE AND EQUITY; ISSUE WRIT IN THE NATURE OF MANDAMUS AND ISSUE APPROPRIATE DIRECTIONS TO THE RESPONDENTS NO.1,3 TO7TO QUANTIFY AND PAY COMPENSATION UNDER SECTION20OF THE SLUM ACT IN RESPECT OF06ACRES18GUNTAS15ANNAS IN SY.NO.37/3A OF NEKAR NAGAR, AYODHYA VILLAGE (V) AT THE EARLIEST, IN THE INTEREST OF JUSTICE AND EQUITY; ALTERNATIVELY, DIRECT THE RESPONDENTS NO.1,3 TO7TO PAY DAMAGES AND RELOCATE ALL THE SLUM DWELLERS FROM06ACRES18GUNTAS15ANNAS IN SY.NO.37/3A OF NEKAR NAGAR, AYODHYA VILLAGE (V) TO ANY OTHER GOVERNMENT LAND AND FURTHER DIRECT THE RESPONDENTS TO CLEAR ALL THE STRUCTURES OR BUILDINGS MADE BY THEM AND HAND OVER VACANT POSSESSION OF THE AFORESAID LAND TO THE PETITIONERS, IN THE INTEREST OF JUSTICE AND EQUITY.-. 6 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR

ORDER

S ON1909.2024, COMING ON FOR PRONOUNCEMENT OF

ORDER

S THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CAV

ORDER

(PER: HON’BLE MR. JUSTICE H.P. SANDESH) 1. Heard the petitioners’ counsel and also the learned AAG appearing for the respondents.

2. The prayer sought in Writ Petition No.101473/2023 is to issue it in the nature of certiorari quashing the notification bearing No.VaE/113/SBM2020 Bengaluru dated 11.04.2022 issued by respondent No.1 insofar as the petitioner is concerned in respect of the land bearing Survey No.37/2 vide Annexure-K and also issue a writ in the nature of mandamus directing the respondents to take further steps pursuant to the notification dated 16.11.2018 bearing No.VaE-134- KoME-2018 passed by respondent No.1 vide Annexure-E and grant such other reliefs as deems fit in the circumstances of the case.-. 7 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 3. The petitioners in writ petition No.104671/2023 prayed this Court to quash the impugned notification bearing No.VaE113 SBM2020 Bengaluru, date 11.04.2022 vide Annexure-L issued by respondent No.1; to issue writ in the nature of certiorari by quashing the impugned report bearing No.Ashraya/VeVa-03/2021-22, dated 23.03.2022 vide Annexure-H submitted by the respondent No.6 Assistant Commissioner; to issue writ in the nature of certiorari by quashing the impugned report bearing No.RP-2/2020, dated 25.03.2022 vide Annexure-J submitted by the respondent No.5 Deputy Commissioner of Dharwad; so also sought for writ of mandamus to issue appropriate directions to respondents No.1, 3 to 7 to quantify and pay compensation under Section 20 of the Slum Act in respect of 06 acres 18 guntas 15 annas in Sy.No.37/3A of Nekar Nagar, Ayodhya village (V) at the earliest; and alternatively to direct the respondents No.1, 3 to 7 to pay damages and - 8 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 relocate all the slum dwellers from 06 acres 18 guntas 15 annas in Sy.No.37/3A of Nekar Nagar, Ayodhya village (V) to any the Government land and further direct the Respondents to clear all the structures or buildings made by them and hand over vacant possession of the aforesaid land to the petitioners and grant such other relief as deems fit in the circumstances of the case.

4. The factual Matrix of the case in W.P.No.101473/2023 is that, respondent No.2 herein issued a notification under Section 3 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1956 (‘the Slum Act’, for short) notifying the land belonging to the petitioner bearing R.S.No.37/2B measuring 1 Acre 26 Guntas. The said notification was issued without even hearing the petitioners. Thereafter, respondent No.1 issued allotment letter and possession certificate to about 457 families. The said allotees have put up - 9 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 construction and residing in the said land since last 20 years. The notification is produced as Annexure- A. It is also the case of the petitioner that, they submitted a representation to the respondents seeking compensation for the notified land as per the provisions of Slum Act even in 2015-16, but no action was taken and list of the persons/allottees is produced as Annexure-B. It is also contended that, as against the inaction on the part of the respondents, petitioners preferred the Writ Petition bearing W.P.No.103081/2016 seeking writ of mandamus to consider the representation for payment of compensation. The said writ petition came to be allowed with a direction to consider the representation for payment of compensation as per Annexure-C. Pursuant to the directions of this Court, respondent No.2 issued preliminary notification for acquisition of subject lands. Thereafter, respondents No.2 and 3 issued several recommendations to the respondent No.1 seeking issuance of final notification - 10 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 and payment of compensation on 16.11.2018. Respondent No.2 de-notified the entire acquisition proceedings with a view to evade payment of compensation to the land losers on 11.04.2022 and the same is produced as Annexure-K. It is also the contention that respondent No.2 also recommended not to de-notifying the same and there is no such provision under the Slum Act and if the same is de- notified, the persons who are in possession going to lose their right and Annexure-J is also produced before the Court and even petitioner also relied upon the copy of the minute of the deliberations as per Annexure-H. The copy of the Preliminary Notification dated 16.11.2018 s also produced as per Annexure-F and also produced copy of the order passed in CCC No.100054/2018 dated 14.11.2018 as per Annexure- E.

5. The counsel appearing for the petitioner in W.P.No.101473/2023 contended that; - 11 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 5.1. The notification is erroneous and invoked the writ jurisdiction and the same is passed without hearing the petitioner. The impugned action of the respondents is highly arbitrary illegal perverse and the same is made with malafides. 5.2. That the impugned action of the respondents is violative of Article 300-A of the Constitution of India inasmuch as petitioner is deprived of the land and compensation for subject land. The petitioners/land loser has not received even a penny from the respondents since 30 years of acquisition. The respondents have notified the subject land in the year 1992 and taken possession from the petitioners. Thereafter, the said land has been allotted to around 457 families by issuing possession certificates. The said families are constructed homes and residing in the subject land since more than 20 years. The respondents have been collecting - 12 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 municipal tax, road tax and other statutory taxes from the residents. 5.3. It is also contended that, once the notification was issued under Section 17 of the Slum Act, ought to have finalized determining the compensation. When the Court also directed to pay compensation and initiate appropriate proceedings and also when they did not comply with the same, the contempt proceedings was initiated. It is also contended that, once the land was acquired and possession was taken, the respondents cannot de-notify the same and under the Act there is no such provision and hence this Court has to exercise the writ jurisdiction. 5.4. The counsel in support of his arguments relied upon some of the documents produced along with the memo, particularly the possession certificate issued by the respondent Slum Board with respect to sites in petitioner’s property and - 13 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 contended that, while issuing the possession certificate, even mentioned the notification dated 20.06.1992 even including the measurement and in terms of the Government Order No.YE/102/SBM2002 dated 18.10.2004 they have been in possession. 5.5. The counsel also in support of his arguments relied upon the judgment of the Hon’ble Apex Court reported in the case of Satetendra Parasad Jain Vs. State of UP and Others reported in (1993) 4 SCC369and referring to this judgment would contend that, the Hon’ble Apex Court discussed Sections 48, 17(1) and (3-A) and 11-A of the Land Acquisition Act, 1894 and held that, once possession is taken under Section 17(1), the Government cannot withdraw from acquisition under Section 48. The counsel brought to the notice of this Court the discussion made in paragraph No.14 and contend that, in the judgment in Rajasthan - 14 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 Housing Board vs. Shri Kishan, it was held that Government could not withdraw from acquisition under Section 48 once it had taken possession of the land and also relied upon the judgment in the case of Lt.Governor of H.P. Vs. Avinash Sharma reported in (1970) 2 SCC149and extracted paragraph No.8 with regard to invoking of General Clauses Act cannot pass such notification. 5.6. The counsel also relied upon the judgment in the case of Sanjeevnagar Health and Medical Employees Association Vs. Mohd. Abdul Wahab reported in (1996) 3 SCC600and brought to the notice of this Court paragraph No.12, wherein also it is held that, only Section 48(1) gives power to withdraw from acquisition, that too when possession is taken. The counsel referring to this judgment would vehemently contend that, the respondents once they have declared the said - 15 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 property as slum property invoking Section 3 and subsequently a notification was issued under Section 14, they cannot withdraw the same and possession has been taken and put them in possession referring the Government notification and now they cannot contend that they have not taken any possession and no power is vested with the respondents to de- notify the same and hence this Court has to grant the relief as sought.

6. Per contra, learned AAG appearing for the respondent State brought to the notice of this Court Annexure-K passed by the respondent Government de-notifying the same since the preliminary notification dated 16.11.2018 vide Annexure-F is withdrawn. The counsel also vehemently contend that, no dispute that earlier they have filed writ petition and direction was given and prior to that notification was issued in the year 1992. The - 16 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 counsel also vehemently contend that the Assistant Commissioner has given the report that, even prior to declaring the same as slum property, they have sold the property by executing the sale agreement and power of attorney and the Assistant Commissioner has conducted detailed enquiry and submitted report on 23.03.2024 to the Deputy Commissioner, Dharwad and report is produced as Annexure-R1. According to the said report, the owners of the said land have executed sale agreement in favour of the Hubballi sightless Labourers Association represented by its Secretary on 18.03.1985. The same was duly registered before the concerned Sub-Registrar Office on 19.03.1985. In furtherance of the said sale agreement a General Power of Attorney came to be executed by the owners of the land on 16.04.1985. The same is also registered on the said date by the concerned Sub- Registrar Office. The copies of the agreement of sale and General Power of Attorney are produced as - 17 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 Annexures-R2 and R3. It is also contended that, the said Association has formed a layout in the said land and allotted a plot to each labours and they handed over the possession under the document styled as "Plot Thaba Patra" and the same is produced as Annexure-R4 series. The counsel also would contend that, in view of the above background, the Government has rightly taken decision to drop the acquisition proceedings. The declaration of the said land as slum area does not amount to acquisition of the said land. The area coming under the said land was already in the occupation of many families who have constructed their houses in the said area. Since the said residential area was not having basic amenities like proper road, electricity, drinking water and drainage facilities, the area was declared as slum in order to develop the area by providing basic necessities and infrastructure. Hence the petitioner knowing fully well that he is not the owner of the land, but taking the shelter under notification - 18 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 declaring the area coming under the said land as slum area is trying to mislead the Court by filing the writ petition and hence he is not entitled for any relief.

7. Respondents No.2 and 3 have also filed statement of objections and they also relied upon the earlier preliminary notification and also subsequent notification and contend that these respondents are in no way responsible for the development of the slum in the said land and due to negligence of the petitioner, purchasers/land owners slum was developed in the said land and respondent No.4 only after satisfying with the ingredients of Section 3 of the Slum Act, has declared the said land as slum. It was brought to the notice of respondent No.1 about the illegal and unauthorised execution of bonds by appointing their person by the petitioner after the notification of de-notifying the land. Respondent No.1 has de-notified the said land after considering - 19 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 the fact relating to the said land in detail and financial burden to the Government and other grounds which have been urged in the petition cannot be considered. It is also contended that, the families were already living/settled on the said land since many years in the slum which developed in the land. The counsel appearing for the Slum Board also vehemently contend that, by issuing possession certificate only recognized their possession and notification was issued by the Government under Section 3 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973. The counsel also vehemently contend that the appeal lies under Section 59 of the Act and they cannot invoke writ jurisdiction.

8. The counsel appearing for the State also vehemently contend that in the possession certificates issued by the Association, survey numbers are also mentioned and now they cannot contend that the survey - 20 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 numbers are not mentioned and Section 3 is only invoked for improvement. It is also contended that Section 21 of General Clauses Act used for withdrawal. The counsel would contend that, the judgments relied upon by the petitioner not applicable and Section 48 can be invoked only after possession is taken by the Government and no such possession has been taken.

9. In W.P.No.104671/2023 similar facts have been urged and relied upon the notification dated 20.05.1992 as Annexure-A, Annexures B and B1 are MR numbers, representation given by the petitioners as Annexure-C, so also the order passed by this Court in W.P.No.102553/2017 is relied upon and the same is at Annexure-D. It is also contended that, subsequent to the order, Government also issued notification under Section 17 of the Act as per Annexure-E dated 16.11.2018. The recommendation dated 11.09.2019 is produced as Annexure-E1 and - 21 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 so also copy of the order dated 01.09.2021 passed in W.P.No.145811/2020 as per Annexure-F, copy of the minutes of deliberations of the Housing Department as Annexure-G, copy of the impugned report dated 25.03.2023 by the Deputy Commissioner at Annexure-J, copy of the memo dated 19.04.2024 at Annexure-K, copy of the impugned notification dated 11.04.2022 issued by respondent No.1 at Annexure- L, copy of the application dated 06.07.2022 for production of document along with documents in CCC No.100064/2022 as Annexure-M, copy of the counter affidavit dated 12.08.2022 filed by respondent No.1 in contempt petition as Annexure-N, copy of the counter affidavit dated 09.09.2022 filed by the petitioners in contempt proceedings along with documents at Annexure-P, copy of the order dated 12.09.2022 passed in contempt petition as per Annexure-Q, copy of the communication dated 12.04.2002 by respondent No.4 to respondent No.1 - 22 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 as per Annexure-R, copy of RTI replies dated 13.06.2022 and 11.01.2023 at Annexures T and T1.

10. W.P.No.104671/2023 is in respect of the area of 06 acres 18 guntas 15 annas in Sy.No.37/3A, declaring the same as slum area in the year 1992. The counsel for the petitioners in this petition would vehemently contend that, Annexure-L withdrawing the notification issued under Section 17 of the Act and so also the preliminary notification and withdrawing of the same is also without notice to the petitioners and hence the writ jurisdiction is invoked. The action of the respondents in unilaterally basing on the reports is without jurisdiction and no such provision is available in the Act to de-notify the same. There is no dispute about the fact that the land was declared as slum area in the year 1992 and also subsequently writ petitions are filed and directions were given and preliminary notification was issued and subsequently only with an intention to avoid payment of - 23 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 compensation created the report of the Assistant Commissioner and Deputy Commissioner and based on the same, de-notifying the same unilaterally withdrawn as per Annexure-L without giving an opportunity, that too after utilizing and changing the nature of the land of the petitioners is violation of Article 14 and Article 300A of the Constitution of India and the same is liable to be quashed. It is also contended that, the Slum Board every year receives separate grant/fund under the State Budged under separate allocation to carry out its objective as well it receives fund from Central. The counsel would also contend that, if they are not bound to pay compensation, then it is their duty once they declared the same as slum area and provide all facilities alternatively direct respondents No.1, 3 to 7 to relocate the slum dwellers and handover the vacant possession.-. 24 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 11. Though not filed separate statement of objections in this petition, very same arguments were also canvassed by the learned AAG for the State as well as the counsel for the Slum Board, contending that, when sale agreement and Power of Attorney were executed, they cannot file petition seeking for compensation.

12. In support of his arguments, petitioners’ counsel relied upon the judgment of the Hon'ble Apex Court in the case of K.T. Plantation Pvt. Ltd and others Vs State of Karnataka and another reported in AIR2011SC3430and brought to the notice of this Court the principles laid down in the said judgment, deprivation of property by State ought to be for public purpose, right to claim compensation though not expressly included can be read in Article 300A. The counsel also brought to the notice paragraph 17 of the said judgment, wherein it is discussed with regard to the public purpose and also in paragraph - 25 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 121 with regard to the payment of compensation. The counsel also brought to the notice of this Court paragraphs No.140 and 143, wherein discussion was made with regard to the principle contains no explicit substantive component like eminent domain but has many shades and colours and so also violation of principles of natural justice may undermine rule of law so also at times arbitrariness, proportionality, unreasonableness etc., but such violations may not undermine rule of law so as to invalidate a statute. Violation must be of such a serious nature which undermines the very basic structure of our Constitution and our democratic principles.

13. The counsel also relied the judgment of this Court in the case of Smt.P.Nagarathana Vs. The Commissioner Bangalore Development Authority and others reported in ILR2013KAR2657 wherein it is held that Section 48(1) was enacted giving liberty to the Government to withdraw - 26 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 the land from acquisition, the possession of which has not been taken. The counsel would contend that, if the possession is taken, then cannot be de- notified. The counsel brought to the notice of this Court the discussion made in paragraphs No.21, 22 and 23 of the said judgment to contend that, once the possession is taken by the State Government and handed over the same to BDA for formulation of the layout, the question of withdrawing the land from acquisition under Section 48(1) does not arise.

14. The counsel also relies upon the judgment of the Hon'ble Apex Court in the case of Special Land Acquisition Officer Vs. Godrej and Boyce, decided on 27.10.1987 with regard to Section 48 of the Act and the same is also discussed in paragraph No.5. So long as possession is not taken over, the mere fact of a notification under Section 4 nor declaration under Section 6 having been made does not divest the owner of his rights in respect of the - 27 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 land or relieve him of the duty to take care of the land and protect it against encroachments. However, once possession is taken, the State Government cannot withdraw from the acquisition at any stage after taking the possession.

15. The counsel also relied upon the judgment of the Hon'ble Apex Court in the case of The State of Karnataka and another Vs. B.R Muralidhar reported in (2022) 10 SCR448and brought to the notice of the discussion made in paragraph No.7 and so also in paragraph No.9 and contend that, in this judgment also discussed the judgment of K. T. Plantation Private Limited and so also the The Deputy Commissioner and Collector, Kamrup & Ors. Vs. Durganath Sarma reported in AIR1968SC394 wherein even extracted paragraph No.21 and contend that under Section 20 of the Slum Areas Act as unconstitutional. Further direction was given, it is for the legislature to decide and prescribe the - 28 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 reasonable method of determining the market value for the purpose of paying compensation to the land losers.

16. The counsel also relied upon the judgment in the case of Suraj Lamp and Industries Pvt.Ltd Vs. State of Harayana and another reported in (2012) 1 SCC656 wherein also a discussion is made with regard to the scope of sale agreement and execution of Power of Attorney and its legality and held that immovable property can be transferred/conveyed only by deed of conveyance (sale deed) duly stamped and registered as required by law – Explaining the nature and scope of an agreement for sale, power of attorney and living will, held, GPA sales or Sale Agreement/GPA will transfers neither convey any title nor do they amount to transfer of, or create interest in, immovable property except to the limited extent of Section 53-A.-. 29 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 17. In reply arguments, learned AAG would vehemently conte that, though there is no provision under the Act for de-notification, de-notified the same invoking General Clauses Act, particularly Section 21, Power ot issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws, and powers are exercised under the General Clauses Act. Hence the contention of the petitioners that there is no any provision under the Act to de-notify the same cannot be accepted.

18. Having heard the petitioners’ counsel and also the learned AAG appearing for the State as well as learned counsel for respondents No.2 and 3 and also the principles laid down in the judgment referred supra, this Court has to analyse the material available on record as to whether this Court can exercise writ jurisdiction to quash the notification issued by the State in both the matters.-. 30 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 19. It is not in dispute that the petitioners are owners of the respective properties to the extent of 01 acre 26 guntas and also 06 acres 32 guntas in respect of Survey No.37/2B and 37/3A and also not in dispute that the said land was declared as slum area under Section 3 of the Karnataka Slum Areas (Development)Act, 1973, as per the notification dated 20.05.1992. It is also not in dispute that the petitioners in both these petitions have approached this Court when the compensation was not paid and direction was given in both the petitions to consider the representation. It is also not in dispute that preliminary notifications are issued subsequent to the directions issued by this Court under Section 17 of the Act dated 16.11.2018. It is also not in dispute that in spite of preliminary notification was issued, respondents have not taken any action to pay compensation and hence contempt proceedings was initiated wherein objections are filed and contempt proceedings was dropped since the State has raised - 31 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 the disputed issues. It is also important to note that respondent No.1 relied upon the report of the Assistant Commissioner and Deputy Commissioner to withdraw the earlier preliminary notification and the same is challenged in both the writ petitions.

20. This Court would like to rely upon Section 3 of the Karnataka Slum Areas (Development) Act, 1973, which reads as follows:

3. Declaration of slum areas.- (1) Where the Government is satisfied, that,- (a) any area is or is likely to be a source of danger to health, safety or convenience of the public of that area or of its neighborhood, by reason of the area being low-lying, insanitary, squalid, over-crowded or otherwise; or (b) the buildings in any area, used or intended to be used for human habitation are,- (i) in any respect, unfit for human habitation; or (ii) by reason of dilapidation, overcrowding, faulty arrangement or faulty arrangement of streets, lack of ventilation, light or sanitation facilities, or any combination of these factors, detrimental to safety, health or morals, - 32 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 it may, by notification, declare such area to be a slum area. (2) In determining whether a building is unfit for human habitation, for the purposes of this Act regard shall be had to its condition in respect of the following matters that is to say,- (i) repair, (ii) stability, (iii) freedom from damp, (iv) natural light and air, (v) water-supply, (vi) drainage and sanitary conveniences, (vii) facilities for storage, preparation and cooking of food and for the disposal of waste water, and the building shall be deemed to be unfit as aforesaid, if it is so defective in one or more of the said matters that it is not reasonably suitable for occupation.

21. Having considered Section 3 of the Act, it is very clear that notification was issued in the year 1992 declaring the area as slum area. It is also not in dispute that preliminary notification was also issued under Section 17 of the Act. This Court also would - 33 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 like to rely upon Section 17 of the Act. Sections 17 and 18 of the Act read as follows:

17. Power to acquire land.- Where the Government is satisfied that, for the purpose of executing any work of improvement in relation to any slum area or any building in such area or for the purpose of re-developing any slum clearance area, or for the purpose of rehabilitating slum dwellers, it is necessary to acquire any land within, adjoining or surrounded, by any such area, it may acquire the land by publishing in the official Gazette, a notice to the effect that it has been decided to acquire the land in pursuance of this section: Provided that before publishing such notice, the Government shall call upon the owner or any other person who, in the opinion of the Government, may be interested in such land, to show cause why it should not be acquired; and after considering the cause, if any, shown by the owner or any other person interested in the land, the Government may pass such orders as it deems fit.-. 34 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 18. Land acquired to vest in Government free from all encumbrances.- When a notice under section 17 is published in the official Gazette, the land to which the said notice relates shall, on and from the date on which the notice is so published, vest absolutely in the Government free from all encumbrances.

22. Section 17 is very clear that, where the Government is satisfied that, for the purpose of executing any work of improvement in relation to any slum area or any building in such area or for the purpose of re- developing any slum clearance area, or for the purpose of rehabilitating slum dwellers, it is necessary to acquire any land within, adjoining or surrounded, by any such area, it may acquire the land by publishing in the official Gazette. It is also important to note that in view of Section 17 the same is acquired. Section 18 is also very clear, when a notice under section 17 is published in the official Gazette, the land to which the said notice relates shall, on and from the date on which the - 35 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 notice is so published, vest absolutely in the Government free from all encumbrances.

23. Having read provision under Section 18 of the Act, it is very clear that the land vests with the State free from all encumbrances. Now the question before this Court is weather respondent No.1 can de-notify the same as de-notified in the matters. The reasons assigned for de-notifying is also that, even prior to the notification, these petitioners have executed sale agreement and General Power of Attorney and in the first case they have relied upon the same as Annexures R1 and R2 and in the second case also relied upon documents, which have been filed by the petitioners themselves. The main contention of the petitioners that, once they have executed sale agreement and General Power of Attorney, in terms of the Power of Attorney and sale agreement, the Association also delivered possession to some of the persons.-. 36 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 24. The petitioners’ counsel relied upon the possession certificates issued by the Slum Board and having read the possession certificates, it is very clear that a notification was issued in the year 1992 and reference is also made in the possession certificates. It is also important to note that, the Government Notification No.YE/102/SBM2002 dated 18.10.2004 is referred in the possession certificates and in terms of the said notification they are in possession, and the same has been confirmed by issuing possession certificates. The contention of the respondent State is that only confirmed the possession and given possession, but having read the possession certificates, it is clear that in terms of Government Notification dated 18.10.2004, they have been in possession and reference of earlier notification is also made therein.

25. Regarding the contention of the respondent State that de-notification is made exercising the power - 37 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 center Section 21 of the General Clauses Act, it is to be noted that, the citation relied upon by the petitioners’ counsel in Satetendra Parasad Jain’s case (supra), it is very clear that, once the possession taken under Section 17(1), the Government cannot withdraw from acquisition under Section 48. It is also important to note that, in paragraph number 14 of the said judgment, the Hon’ble Apex Court also discussed the judgment Rajasthan Housing Board’s case and held that the Government could not withdraw the acquisition under Section 48 once it had taken possession of the land. The Hon’ble Apex Court also relied upon the judgment in the case of Lt.Governor of H.P. V. Avinash Sharma and extracted paragraph No.8 of the said judgment, which reads as follows: “………after possession has been taken pursuant to a notification under Section 17 (1) the land is vested in the Government, and the notification cannot be cancelled under Section 21 of the General Clauses Act, nor can the notification be withdrawn in - 38 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 exercise of the powers under Section 48 of the Land Acquisition Act. Any other view would enable the State Government to circumvent the specific provision by relying upon a general power. When possession of the land is taken under Section 17(1), the land vests in the Government. There is no provision by which land statutorily vested in the Government reverts to the original owner by mere cancellation of the notification.

26. Having read the discussion made above by The Honorable Apex Court in the judgment referred supra, it is very clear that, after possession has been taken pursuant to a notification under Section 17(1) the land is vested in the Government, and the notification cannot be canceled under Section 21 of the General Clauses Act, nor the notification can be withdrawn in exercise of powers under Section 48 of the Land Acquisition Act and hence contention of the learned AAG cannot be accepted.

27. Hence the very contention of the State that they invoked General Clauses Act and withdrew the same cannot be accepted. It is rightly contented by the - 39 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 counsel appearing for the petitioners that there is no any provision under the Act for de-notifying the same, but the contention of the learned AAG that General Clauses Act is invoked and the same is withdrawn cannot be accepted.

28. The other contention of the respondents that possession was not taken, having read series of documents of issuance of possession, which I have already referred above, it is very clear that, in view of the Government Notification dated 18.10.2004, possession was taken and confirmed the possession by issuing possession certificate.

29. With regard to the contention of the respondent State that, once they have executed sale agreement and Power of Attorney, they cannot seek any compensation, the counsel appearing for the petitioners also relied upon the judgment of the Hon’ble Apex Court in reported in (2012) 1 SCC656in the case of Suraj Lamp and Industries - 40 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 Pvt.Ltd Vs. State of Harayana and another, wherein it is held that, execution of sale agreement and Power of Attorney will not convey any right on any person and the same can be conveyed only by deed of conveyance i.e., sale deed, that too duly stamped and registered as required by law. Even the Hon’ble Apex Court explained the nature of agreement of sale and Power of Attorney and held GPA as well as agreement of sale neither convey any title nor do they amount to transfer of, or create interest in, immovable property except to the limited extent of Section 53-A.

30. Having considered the principle laid down by the Hon’ble Apex Court in the above judgment also, it is clear that respondents have declared the land as slum area having taken note of scope of Section 3(a) of the Act and even it is for the purpose of improvement. I have already pointed out that in the possession certificates also the respondents have - 41 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 made a reference to the Government Notification dated 18.10.2004 and declared that they are in possession consequent upon the same and confirmed the possession by issuing possession certificates and now they cannot blow hot and cold contending that possession has not been taken. Even if the sale agreement/Power of Attorney does not convey any right, in view of the respondent State relying upon the possession certificates issued by the Association and the same is not registered document and also the other documents are also notary documents which have been relied upon by the petitioners in the second petition and the same also does not convey any title. When such being the case, when the petitioners are owners of the property and the same has not been disputed and when there is no any legal transfer before the Court, the very contention of the State cannot be accepted. The other judgments which have been relied upon by the petitioners’ counsel are very clear with regard to taking - 42 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 possession is concerned. Once the possession has been taken, the same cannot be withdrawn. The reason for withdrawing the same is also the report of the Assistant Commissioner and unilaterally taken the possession without affording any opportunity to the petitioners. The fact that these petitioners have approached this Court and this Court has given Direction and subsequent to the direction they have issued preliminary notification under Section 17 also not in dispute. When the documents which have been relied upon by the State does not convey any title and even assuming that the sale agreement and Power of Attorney are accepted, that will not create any right. It is also important to note that, petitioners’ counsel also brought to the notice of this Court that, even they have not paid compensation to the agreement holder as well as for the Power of Attorney holder. Hence there is force in the contention of the petitioners that the sale agreement and Power of Attorney, even if it is accepted that it - 43 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 does not convey any title and title vests with the petitioners only. The petitioners have also produced the documents before the Court and even agreement holders and Power of Attorney holders have not made any claim. When such being the case, the petitioners, who are the owners of the land, are entitled for compensation. Hence the very issuance of notification is unlawful, that too without affording any opportunity and only based on the report of the Assistant Commissioner and Deputy Commissioner. Hence both the petitions are liable to be allowed and respondent No.1 is directed to pay compensation in favour of the petitioners in accordance with law. The other contention of the learned AAG that the appeal lies under Section 59 of the Act and the said contention also cannot be accepted for the reason that there is no provision in the Act to de-notify and withdraw the notification and hence Section 59 of the Act cannot be invoked to file an appeal as contended.-. 44 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 31. In view of the discussions made above, I pass the following:

ORDER

i. Both the writ petitions are allowed. ii. The notification bearing No.VaE/113/ SBM2020 Bengaluru dated 11.04.2022, issued by respondent No.1, in both the petitions are quashed. iii. Consequently, the impugned report bearing No.Ashraya/VeVa-03/2021-22, dated 23.03.2022 vide Annexure-H submitted by the respondent No.6 Assistant Commissioner and the impugned report bearing No.RP-2/2020, dated 25.03.2022 respondent No.5 Deputy Commissioner of Dharwad, are quashed.-. 45 - NC:

2024. KHC-D:14142 WP No.101473 of 2023 C/W WP No.104671 of 2023 iv. Writ of mandamus is issued to respondents No.1, 3 to 7 to quantify and pay compensation under Section 20 of the Slum Act, in respect of lands in both these petitions. Sd/- (H.P. SANDESH) JUDGE gab ct-mck List No.:

1. Sl No.:

9.