AI Structured Summary
Not yet generated for this judgment
Judgment
B. Veerappa, J.—1. The petitioners have filed the above writ petitions praying for a writ of certiorari quashing Annexure-A dated 1.10.2014 in Subject No. 5 passed by the 2nd respondent rejecting the request of the petitioners for personal use of the land and also a writ of mandamus directing the respondents to issue no objection to them by considering their representation dated 18.8.2014 vide Annexure-H.
It is the case of the petitioners that they are the owners in actual possession and enjoyment of the land earlier bearing R.S. No. 187/3 measuring 1 acres 15 guntas now after bifurcation R.S. No. 187/3 measuring 17 guntas and R.S. No. 187/5 measuring 38 guntas situated at Hindalaga, Belgaum Taluk and District by virtue of the registered sale deed dated 29.12.2010 and subsequently, their names were entered in the record of rights and mutation as per Annexures-C and C1.
The 2nd respondent-Belgaum Urban Development Authority had drawn acquisition scheme under the provisions of Section 17 of the Karnataka Urban Development Authorities Act, 1987 for formation of residential layout by issuing a notification dated 5.6.2007 and the said scheme was not worked out and implemented. As such due to efflux of time, it got lapsed. The owners of the adjacent lands made an application to the respondents to issue no objection to use their lands for personal use and consequently, the same was accorded by the respondents, whose lands were also notified under the notification dated 5.6.2007 vide Annexures-D and D1.
The petitioners also made representation to the 2nd respondent with a request to permit them to use their lands, but the same was not acceded. Therefore, the petitioners were constrained to approach this Court in W.P. No. 84870/2013 and connected matters. This Court after hearing both parties by an order dated 24th July, 2014 disposed of the writ petitions and directed the 2nd respondent to consider the grievance of the petitioners as stated in their representations - Annexures-H and H1 and to make known to the 1st petitioner therein, the out come, within a period of three months from the date a copy of this order becomes available. A liberty was also reserved to the petitioners to seek relief, if any, with regard to lapsing of the scheme notified vide Annexure-E therein.
In pursuance of the order passed by this Court, the petitioners made representations to the 2nd respondent along with a copy of the order of this Court. But the 2nd respondent without considering the material on record, by the impugned order has rejected the petitioners'' representations. Therefore, they are before this Court for the relief sought for.
Respondent No. 2 filed statement of objections denying the averments made in the writ petitions contending that the objections submitted by the land owners were placed before the meeting of the 2nd respondent/Authority on 2.5.2011 for consideration and it was resolved to reject the said objections. Further in the meeting of the Authority held on 11.11.2013, it was resolved to continue the acquisition proceedings in respect of the land measuring 61 acres 33 guntas excluding the deleted survey numbers and further resolved to submit the proposal to the Government for sanction as required under Section 18(1) of the Act, 1987 (for short, hereinafter referred to as the Act) and also contended that in pursuance of the order passed by this Court in Writ Petition No. 84870/2013, the authorities considered and passed order and the same is in accordance with law and the petitioners are not entitled to any relief by this Court under Articles 226 and 227 of the Constitution of India. It is also contended that the petitioners are the subsequent purchasers and the writ petitions filed by them are not maintainable. Therefore, they sought for dismissal of the writ petitions.
I have heard the learned Counsel for the parties to the lis.
Sri Hanumanthreddy Sahukar appearing on behalf of Sri D. Ravikumar Gokakakar, learned Counsel for the petitioners contended that the respondents have willfully and deliberately avoided to say anything about the fact that the impugned acquisition scheme is lapsed or not and the representations of the petitioners'' are rejected by the 2nd respondent whereas in respect of Sy. No. 187/2 which is abutting the petitioners'' lands which was also notified in the notification dated 5.6.2007, has been deleted from acquisition by issuing no objection and therefore, the 2nd respondent is discriminating between the owners of the lands which is in violation of the provisions of Article 14 of the Constitution of India. Therefore, he sought to allow the writ petitions.
Per contra, Sri M.A. Hulyal, learned Counsel for the 2nd respondent and Smt. K. Vidyavati, learned AGA for respondent No. 1 sought to justify the impugned order.
Sri M.A. Hulyal, learned Counsel for respondent No. 2 contended that the petitioners are the subsequent purchasers and the writ petitions filed by them are not maintainable. He also contended that the objections submitted by them were placed before the meeting of the 2nd respondent/Authority on 2.5.2011 for consideration and it was resolved to reject the said objections. Further in the meeting dated 11.11.2013 held by the Authority, it was resolved to continue the acquisition proceedings. Therefore, he sought for dismissal of the writ petitions.
I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record.
It is not in dispute that the lands bearing Sy. No. 187/3 measuring 17 guntas and 187/5 measuring 38 guntas were acquired by the 2nd respondent by issuing notification under Section 17 of the Karnataka Urban Development Authorities Act, 1987 on 5.6.2007 and it is also not in dispute that the said lands are purchased by the petitioner under a registered sale deed dated 29.12.2010. It is also not in dispute that on the representation made by the adjoining lands owners, whose lands were acquired under the notification dated 5.6.2007, their lands were dropped vide Annexure-D about 14 acres 9 guntas and 2 anas and Annexure-D1 about 19 acres 28 guntas and 7 anas.
It is also not in dispute that earlier the present writ petitioners filed Writ Petition Nos. 84870/2013 and connected matters before this Court praying to direct the respondents to issue ''No Objection Certificate'' to them in terms of the representations made by them as per Annexures-H and H1 therein for use of their lands. This Court by its order dated 24th July, 2014 directed the 2nd respondent to consider the grievance of the petitioners, stated in the representations vide Annexures-H and H1 therein and make known to the first respondent, the out come, within a period of 3 months. Liberty was also reserved to the petitioners to seek the relief, if any, with regard to lapsing of the scheme notified vide Annexure-E made therein.
In pursuance of the said observations made by this Court, the respondents have now issued the impugned order Annexure-A subject No. 5 rejecting the request of the petitioners for issue of ''No Objection Certificate'' to them by the respondents.
It is an admitted fact that the 2nd respondent on the acquisition scheme under Section 17 of the Karnataka Urban Development Authorities Act, 1987 for the formation of the residential layout has issued the notification dated 5.6.2007, but even after a lapse of 9 years, final notification is not yet issued. Though the learned Counsel for the respondents stated that on 11.11.2013, the 2nd respondent in the meeting resolved to continue the acquisition proceedings but till today, no final notification is issued. It is also not in dispute that the 2nd respondent deleted the large extent of lands from acquisition proceedings which were notified in the notification dated 5.6.2007 adjoining the lands of the petitioners vide Annexures-D and D1 without giving any reason as to why the said lands have been deleted from acquisition proceedings. This has led the discrimination between the land owners and the same is not forthcoming in the statement of objections. Admittedly, the petitioners are in possession of the lands in question as on today and the 2nd respondent has not taken possession nor has issued any declaration/final notification till today. It is contended by the learned Counsel for respondent No. 2 that the purchasers of the lands subsequent to the preliminary notification are not entitled to maintain a writ petition. Admittedly the petitioners are in possession of the lands in question and the other adjoining owners'' lands have been dropped from the acquisition proceedings. It is also not the case of the 2nd respondent that final notification is issued within a reasonable period and it is required for the public purpose. Therefore, the contentions of the respondents cannot be accepted.
It is also not in dispute that the preliminary notification is issued on 5.6.2007 and till today, no scheme is formulated much less the Government has approved any scheme even after a lapse of 9 years or any declaration/final notification is issued under the provisions of Section 19(1) of the Karnataka Urban Development Authorities Act, 1987 till today and the respondents have not shown any cause by giving reason for discriminating among the land owners, whose lands are acquired under the same notification. This Court while considering the similar provisions in the case of Belgaum Urban Development Authority v. Pratab in Writ Appeal Nos. 30936/2012 and connected matter decided on 2nd July, 2013 has held as under:
"3. We do not find any substance in the said contention. Though no period of limitation is prescribed under the Act for issue of a final notification as in the case of Land Acquisition Act, it has been consistently held by this Court as well as by the Apex Court the final notification has to be issued within a reasonable time. In fact, the Apex Court has suggested two year is the reasonable time for the final notification to be issued. The reason is, when compensation is to be awarded, price of the land is pegged down for the market value from the date of preliminary notification. In the instant case, even after 17 years, final notification is not issued. No scheme is framed. No approval of the Government is undertaken. It is in that circumstances, the learned Single Judge has allowed the petition and quashed the notifications issued under Section 17 of the Act. The authority which is lethargic, which is not performing its statutory function has chosen to prefer this writ appeal for the reasons best known to them. What the learned Single Judge has done is to declare the effect of in- action in law and nothing more. In that view of the matter there is no merit in these writ appeals, accordingly, they are dismissed."
Admittedly the present respondent is the appellant in the said appeals which were decided under the provisions of Section 17 of the Karnataka Urban Development Authorities Act, 1987. The said order passed by the Division Bench of this Court is final and conclusive binding on the parties.
The inaction on the part of the respondents in not publishing declaration under Section 19 of the Act that the lands proposed to be acquired are required for particular public purpose and in the absence of any time limit prescribed in the said Act for publishing the notification or passing the award, there is no justification in keeping the matters pending indefinitely for an inordinate delay of 9 years. The decision has to be taken within a reasonable time. As the compensation payable is pegged down to market value of the lands prevailing at the time of publication of the preliminary notification, the delay would cause injury to the land owners as the land value raises. The 2nd respondent is therefore, answerable for the delay. Omission to describe whether the land proposed for acquired is required or not even after a lapse over a period of 9 years from the date of publication of the preliminary notification is not forthcoming in the present case. Hence, it is reasonably unjust, more so when there is no explanation forthcoming for the inordinate delay. Therefore, the impugned order Annexure-H is liable to be quashed.
This Court in the case of Shimoga Urban Development Authority v. State of Karnataka reported in , 2002(2) KCCR 958 while considering the appeal with regard to issuing of final notification has held at paras 17 and 19 as under:
"17. The effect of delay has been considered by the Supreme Court in Ram Chand v. Union of India, JT 1993 (5) SC 465. Though the said case dealt with the delay between the date of Final Notification and the date of passing of the award, the principles enunciated therein will equally apply in respect of the delay between the Preliminary Notification and Final Notification. The Following observations are apposite:
"It is settled that in a statute where for exercise of power no time limit is fixed, it has to be exercised within a time which can be held to be reasonable.... The Authorities are enjoined by the statute concerned, to perform their duties within a reasonable time and as such they are answerable to the Court, why such duties have not been performed by them, which has caused injury to the claimants".
The Supreme Court held that where the compensation is pegged down to the date of preliminary notification and there is inordinate delay, the market rate as on the date of preliminary notification becomes a fraction of the market rate prevailing at the time of passing of the award and taking of possession and that would be unjust to the land owners.
As we have held that the Shimoga Improvement Board had no jurisdiction to issue notification under Section 15(1) of Improvement Boards Act and as a consequent, the final notification under section 19(1) of the Act is also not valid. There is no merit in these appeals and they are dismissed."
Admittedly in the present case, the preliminary notification was issued on 5.6.2007 under the provisions of Section 17 of the Karnataka Urban Development Authorities Act, 1987. Even after a lapse of 9 years, final notification is not issued and the respondents have not offered any explanation for the inordinate delay. Therefore, on that ground also, the impugned order passed by the authorities cannot be sustained.
The learned Single Judge of this Court while considering the provisions of Sections 17 and 19 of the Karnataka Urban Development Authorities Act, 1987 in the case of C. Rangegowda v. State of Karnataka reported in , 2015 (4) KLJ 64 has held that 8 years have elapsed since issue of preliminary notification in the year 2007. The land is sought to be acquired for formation of a residential layout. Though no time limit was framed for issuing declaration and final notification, it must be drawn within a reasonable period of two years. Therefore, the preliminary notification dated 4.1.2007 issued under Section 17 of the said Act was quashed. The law laid down by this Court in the said case is squarely applicable to the facts and circumstances of the present case with all force.
In view of the aforesaid reasons, writ petitions are allowed. The impugned order dated 1.10.2014 passed by the 2nd respondent vide Annexure-A at subject No. 5 is not sustainable and accordingly, it is quashed directing the respondents to consider the representations of the petitioners -Annexure-H to issue ''No Objection'' to the petitioners to use their lands for agricultural purpose on par with the other lands owners, who have been issued as long back as on 22.6.2001 and 30.1.2010 within an outer limited of 3 months from the date of receipt of this order and in accordance with law.