Puttaswamachari, Puttachari and Cheluvachari vs The Mysore Urban Development Authority and The State of Karnataka

A.N. Venugopala Gowda

Land bearing Sy. Ncs. 114/1 measuring 11 guntas and 114/2 measuring 2 acres and 30 guntas, situated at Basavanahalli Village of Mysore Taluk and District was notified for the Vijayanagar IV Stage scheme by the 1st respondent on 23.12.1991, by issue of notification under s. 17(1) of the Karnataka Urban Development Authorities Act (for short, ''the Act''). The said Notification was published in the Karnataka Gazette on 02.01.1992. 3rd respondent issued final Notification under S. 19(1) of the Act on 10.12.1992, which was published in the Karnataka Gazette on 31.12.1992. The Award was passed on 18.07.1994. The petitioners along with others questioned the said Notifications in W.P.Nos. 15648-650/1995. The prayer for quashing of the Notifications was rejected, as per the order dated 04.03.1998.

This writ petition was filed on 28.08.2003, to declare that the acquisition proceedings initiated by the respondents pursuant to the said Notifications as having lapsed in so far as the lands of the petitioners are concerned, on account of non-implementation of the scheme as per S. 27 of the Act

Sri T.A. Rarumbaiah, learned Advocate appearing for the petitioners contended that though the final Notification under S. 19(1) of the Act was issued on 10.12.1992 and was published in the Karnataka Gazette on 31.12.1992, the required steps for implementation of the scheme having not been taken, the scheme in so far as the petitioners'' properties are concerned has lapsed and hence, the respondents be restrained from taking any action in respect of the petitioners'' properties.

Sri T.P. Vivekananda, learned Advocate appearing for the respondents on the other hand, by referring to the statement of objections fifed on 18.10.2006, contended that the claim of the petitioners that the scheme has lapsed is untenable in view of the findings recorded in the order dated. 11.01.2005 passed in W. P. No. 16054/2004. Learned counsel submitted that persons similarly situated like the petitioners had filed W.P. No. 16054/2004 and had raised similar contention of the scheme having not been implemented and the scheme allegedly having lapsed. Learned counsel submitted that, the facts and figures with regard to implementation of scheme was furnished to this Court by way of an affidavit and upon consideration of the same, it was held that there is substantial implementation of the scheme and the contention was negatived. Learned counsel submitted that, since there is substantial implementation of the scheme within the five years'' period, the writ petition is not maintainable.

Keeping in view the rival contentions and the record of the case, the point for determination is:

Whether the scheme has lapsed?

Sri Karumbaiah does not dispute the fact that the petitioners along with others had filed W.P.Nos. 15648-650/1995 and the challenge to the acquisition Notifications was negatived as per an order dated 04.03.1998, as at Annexure-E.

S. 27 of the Act stipulates that the authority should execute the scheme within 5 years'' period from the date of publication of the declaration under S. 19(1) of the Act in the official Gazette and in case of failure to execute the scheme substantially, will lapse and the provisions of S. 36 shall become inoperative.

In W.P. No. 16054/2004, the very same scheme was a subject matter of consideration and the contention put forth was, that on account of the non implementation of the scheme within 5 years'' period from the date of publication of final Notification, the scheme lapsed. The 1st respondent had contended that, in the layout, 12255 sites of various dimensions were formed and allotment was made to eligible persons and that there is substantial implementation of the scheme. Taking notice of the statements made in the counter and the photographs produced, this Court has recorded the finding that the scheme has been substantially implemented and it is not proper and possible to interfere with the acquisition proceedings of the land in question. The findings recorded in the said order are not disputed by Sri Karumbaiah. The contention of Sri Karumbaiah is that the property of the petitioners has remained with the petitioners and that no activity of whatsoever nature to implement the scheme on the petitioners'' property was taken by the 1st respondent resulting in the scheme so far as the petitioners property is concerned as having lapsed. I do not find merit in the contention. The implementation of the scheme cannot be on individual property basis. The implementation of the scheme is with reference to the entire acquired extent of the properties. On account of litigation or other causes, the improvement/development acts may not take place in certain areas/extent of the layout. The same cannot be the basis to a certain substantial implementation of this scheme by the authority.

S. 27 of the Act operates where there is no substantial compliance or implementation of the scheme. In the instant case, the fact remains that out of 1001 acres of acquired land, 12255 sites of various dimensions were formed and allotment has been made to eligible applicants, which establishes that the scheme has been substantially executed. In the circumstances, the claim of the petitioners that there is no substantial implementation of the scheme, on account of which it has lapsed is devoid of merit. The ratio of law in the case of Sundaramma Vs. SPL Deputy Commissioner, reported in 2009 (6) AIR KAR R 3 squarely applies. Consequently, the main prayer in the writ petition with regard to lapse of scheme is concerned is untenable.

However, keeping in view the orders passed in more than one case, i.e., in the matter of allotment of sites on incentive basis as per resolution dated 22.10.1990 of Mysore Urban Development Authority, the 1ST respondent has an obligation to allot site to the petitioners or incentive basis as per the allotment made to similarly situated persons pursuant to the order dated 04.03.1998 passed in W.P. Nos. 15643-650/1995 which was affirmed in W.A.Nos. 5738-49/1998 vide Judgment dated 15.06.1999.

In the result, the writ petition is devoid of merit and stands dismissed. However, the 1st respondent is directed to allot site/s to the petitioners on incentive basis, in terms of its resolution dated 22.10.1990, as early as practicable and at any event, within a period of three months from the date a copy of this order is produced by the petitioners before the 1st respondent.

No costs.