Veer Kumar Jain, represented by his G.P.A. Holder, Sri. R. Yathish Chandra vs The State of Karnataka and The Mysore Urban Development Authority

Anand Byrareddy, J.—The petitioner claims to be the owner who is presently in possession of land measuring 17 acres and 21 guntas spread over land bearing various survey numbers at Dattagalh, Mysore District. The said lands along with another extent of 3 acres and 28 guntas of land are said to have been acquired by the third respondent, the Mysore Urban Development Authority, for the purposes of formation of a road and the Dattagahalli Layout in Mysore City. A preliminary notification u/s 17(1) of the Karnataka Urban Development Authorities Act, 1987 (hereinafter referred to as ''the KUDA Act'', for brevity) was said to have been issued on 15.3.1990. Subsequently, a final notification is said to have been issued u/s 19(1) of the Act as on 25.4.1991. It transpires that several land owners, including the vendors of the petitioner, had challenged the said proceedings before this court in Writ petitions in W.P. Nos. 10621-629/1998. The said petitions were allowed by an order dated 17.9.1998, the final notification was quashed and the respondents were given liberty to pursue the acquisition, if so inclined, from an appropriate stage. However, the respondents are said to have proceeded to form a road without regard for the procedural requirements and without compliance with the legal requirements. It was claimed that it was only subsequently a notification dated 4.10.1999 was said to have been issued declaring the intention of acquiring 21.09 guntas of the land, in the name of the vendors of the petitioner, for the formation of the said road. Aggrieved by the above, the land owners are said to have complained to the Government that the road having been formed already, albeit by using force and without compliance with the law, there was no further need for acquisition of land. It transpires the Government in turn, while confirming the acquisition to the extent of 3.28 acres of land required for the formation of the road, had withdrawn from acquisition in respect of the remaining land as per notification dated 15.9.2001. It is thereafter that the petitioner is said to have purchased the lands in question under several sale deeds dated 28.9.2001.

However, the third respondent is said to have made a representation to the Government to contend that the said respondent had not been heard before the Government chose to withdraw from the acquisition. The State Government is said to have promptly recalled the notification dated 15.9.2001 by a subsequent notification dated 22.7.2002. The petitioner is said to have challenged the said notification dated 22.7.2002 by way of a writ petition before this court in W.P. No. 30425/2002. The same was said to have been allowed by an order dated 28.8.2007. The same was challenged in appeal in W.A. No. 1995/2007, which is said to have been dismissed by a judgment dated 4.12.2007.

It is stated that the petitioner as the owner of the lands had entered into a partnership with a third party under a deed of partnership dated 24.12.2007, to develop an IT park over the lands in question. The firm, M/s. Mysore Hi-tech Park, thus constituted had approached the State Single Window Clearance Committee, under the provisions of the Karnataka Industries (Facilitation) Act, 2002 in respect of its project and the same was cleared by a resolution dated 28.6.2008, to establish Service apartments and a Club house at the lands with an investment of Rs. 44.21 crore.

On the other hand, the MUDA, being aggrieved by the judgment in the writ appeal aforesaid, is said to have preferred an appeal to the Apex Court in Civil Appeal 2934/2010. The same was said to have been partly allowed by an order dated 1.4.2010. The impugned notifications dated 22.7.2002 and 15.9.2001 were quashed and the matter was said to have been remitted to the State Government for consideration of the petitioner''s application seeking withdrawal from the acquisition. It was directed that the petitioner be provided an opportunity to demonstrate that possession of the lands had never been parted with, which was denied by the MUDA.

Pursuant to the same, the State Government by its own Order dated 13.09.2010, has held as follows:

For the foregoing reasons, the Government of Karnataka considers that Sri Veer Kumar Jain has failed to establish the claim that MUDA has not taken over possession of the said lands on 08 12.2000 and 9.10.2000.

Contrary to this, MUDA has established the possession of the said lands on 8.12.2000 and 9.12.2000 by submissions of relevant documents such as Mahazar drawn u/s 16(1) and copy of the official gazette notification issued on 11.12.2000 and 14.12.2000 u/s 16(2) of Land Acquisition Act, which are the evidence of such fact, thereby circumstance does warrant State Government to exercise powers u/s 48(1) of Land Acquisition Act.

As a result, the State Government declines to consider the request for giving up of acquisition of land in the following Sy. Nos. of Dattagali Village of Mysore Taluk.

It is this order which is sought to be questioned in this writ petition.

Shri Madhusudhan R. Naik, the learned Senior Advocate appearing for the counsel for the petitioner contends that, it was the specific case of the petitioner before the second respondent that, the physical possession of the schedule lands always remained with him and the third respondent had not taken possession of the lands as alleged by them. Pursuant to the final notification dated 4.10.1999, the land owners had represented to the Government for ''de-notification'' of the said lands, and in view of such requests made by the land owners, the Government had initiated the de-notification procedure in respect of the schedule lands in the month of May 2000. During the pendency of de-notification proceedings, the third respondent allegedly informed and contended to have taken possession of the schedule lands on 08/09.12.2000 with utter disregard to the said proceedings for de-notification in respect of the schedule land. It is also pointed out that in the light of such controversy and attempt to frustrate the consideration by the Government, an inquiry was initiated, and the Revenue Inspector who had allegedly stated to have taken possession of the lands was called before the de-notification Committee and he was questioned as to how the alleged mahazar was drawn, and it was informed before the said Committee that some persons had gathered at the spot when the Revenue Inspector went to take possession of the land and he took signatures of such persons who had gathered on the spot and he had not obtained their addresses. These aspects having been recorded, after it was ascertained that taking of possession was neither authorized nor in accordance with law; State Government had directed de-notification of lands in question. After having learnt about these procedures of the de-notification Committee during the pendency of the proceedings before the second respondent, a request was made on behalf of the petitioner to the second respondent to secure the entire file pertaining to the land acquisition of the subject lands. It was pointed out that, the said Committee had noticed that the purpose for which the proposed acquisition had been made had already been achieved by formation of double road, and that while de-notification proceedings were under consideration before the Government, there was an attempt to over reach its proceedings; by such attempt to state of taking possession. It was pointed out that, under the circumstances, when it was brought to the notice of the highest executive of the State, the then Chief Minister had directed the Secretary, Urban Development to hold an inquiry by personally visiting the spot and to take a decision based on the factual position. It was also pointed out that such an inquiry had resulted in a finding that the physical possession had not been taken. It was stated that the Revenue Inspector concerned was questioned about how the mahazar was drawn up regarding the taking of possession. In response, he is said to have informed that, some persons had gathered at the spot, when he went to take possession of the land, and he obtained the signatures of the said persons on the mahazar and that he did not know any of them personally nor did note down their addresses, he was also not sure whether they were from the same area. It was based on this inquiry it was decided to denotify the finding that possession was not taken in accordance with law, and the land owners had continued to be in possession. It was pointed out that even ''the notings'' of the Government before the decision was taken, points to these aspects and that they were perused by this Court in the earlier writ proceedings and therefore, there was a need to summon those records. However, the second respondent failed to secure the records sought for by the petitioner and therefore, the petitioner had applied for the entire file pertaining to the land acquisition proceedings, in respect of the schedule lands under the RTI Act, by an application dated 16.08.2010. It is also contended that, pursuant to the final order passed by this Court in W.P. Nos. 10621-629/1998, the respondents issued another final notification dated 04.10.1999 for the second time, in respect of the schedule lands. However, strangely, Sy. Nos. 15/1, 15/2, 15/3, 40/1, 40/2 and 40/3, which were not included in the Preliminary Notification dated 15.03.1990 or in the Final Notification dated 25.04 1991, were included for the first time in the final notification dated 04.10.1999. The final notification dated 4.10.1999, differs from the preliminary notification dated 15.03.1990 and the final notification dated 25.04.1991 in respect of five survey numbers, and therefore, is unsustainable.

The Learned counsel Shri P.S. Manjunath on behalf of Respondent No. 3 contends that with the disposal of the Civil Appeal 2934/2010, the Apex court had directed the State Government to hear the request of the petitioner seeking withdrawal from the acquisition proceedings, afresh. It was open for the petitioner to place such material as was available to demonstrate that possession of the lands in question was not taken and hence the Government could indeed withdraw from the acquisition. It was also open to the MUDA to establish possession was indeed taken and hence the State Government could no longer exercise any power u/s 48(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ''the LA Act'', for brevity). It is contended that the petitioner has raised several grounds in the writ petition which are not germane to the matter in controversy. What was required to be ascertained is whether as on the date of issue of denotification order dated 15.09.2001, the possession of the land had been taken or not by this respondent. The fact that the possession of the land has been taken prior to the said date has been well-established not only by the mahazar drawn on 08.12.2000 but also the letter of the Divisional Commissioner dated 25.11.2000 addressed to the State Government in response to the State Government''s letter dated 20.11.2000 detailing taking of possession of the land and the development that have already taken place on several parts of lands in question and also the letter of the Authority dated 15.12.2000 in response to the Government letter dated 20.10.2000, wherein the details of taking possession had been intimated to the Government.

The possession taken is also further evidenced by the fact that in the letter of the Divisional Commissioner dated 18.12.2000 to the Government wherein it is stated that the possession of the land has already been taken, a road has been formed and two ground level reservoirs have been constructed, 10 to 12 connecting roads have been made, underground and open drains have been constructed and therefore, acquisition should not be given up and also the proceedings of the Denotification Committee which had noted with displeasure that the Commissioner has taken possession of the land while the Committee for Denotification was considering the request of the owners for de-notification.

The de-notification of the land which has been notified for acquisition can take place only if the Government is of the opinion that it is not in the interest of the public to acquire the land and public interest is best served by not acquiring the land. This is the only criteria that could be applied by the State Government for denotifying the land u/s 48(1) of the LA Act.

Even the petitioner himself has admitted that the possession of the land was taken and roads were formed and he was seeking that the State withdraw from acquisition in respect of the left over portions of the land.

The averments made in para 12 of the writ petition to substantiate the claim that possession of the land was not taken, is denied by the respondent. The proceedings referred to are denied by the respondent and that the copy of the said proceedings at no point of time had been forwarded to the respondent. Such proceeding could not have been produced when the matter was heard by the Government on remand from the Supreme Court.

The contention of the petitioner that after having formed the road, the Authority abandoned formation of Datagalli Layout, is negated as being without any merit. It is contended that Datagalli Layout had been fully formed and on the land acquired, double road had been formed and a portion of the land had been utilized for construction of overhead water reservoir and that it could not be said that the Authority had abandoned formation of Dattagalli Layout. It is contended that after the acquisition of the land, if the beneficiary does not utilize the land which had been acquired for the benefit of the State Government, it is open to the State Government to resume the land and utilize the same for any other public purpose as has been held in Northern Indian Glass Industries Vs. Jaswant Singh and Others, .

It is specifically contended that the reliance placed by the petitioner on the Mahazar dated 8-10-2000 to contend that it is a false document, as it did not indicate lands which had been utilized for formation of a road and construction of an overhead tank, is misleading. It is contended that the mahazar dated 8.12.2000 relates to Sy. No. 15/1, 15/2, 27/1, 27/2, 27/3, 27/4, 32, 38/1, 40/1, 40/2, 40/3 and 41/2. The report dated 8.12.2000 records that there are no unauthorized constructions and malkis. Since the roads and ground level reservoirs are not unauthorized constructions, there is no report that there are unauthorized constructions on the lands in question In the notification dated 15.09.2000 itself, it is indicated that in Sy. No. 27/4, 1 acre 20 guntas out of total 1 acre 28 guntas of land has been utilized for formation of roads. Similarly, in Sy. No. 32, 24 guntas out of 2 acres 20 guntas has been utilized for formation of roads. Likewise, in 6 acres 37 guntas in Sy. No. 37/1 and 37/2, 1 acre 38 guntas has been utilized for roads and further, out of 1 acre 19 guntas in Sy. No. 40/1, 40/2, 40/3, 13 guntas has been utilized for formation of roads. Possession of those lands has been taken much before 8.10.2000. Mahazar drawn on 8.10.2000 is in respect of the remaining land in these survey numbers where there are no structures or roads and ground level reservoirs and hence, it is stated that there are no unauthorized construction and the same is not illegal mahazar. The argument of the petitioner based on this mahazar is that, the Mahazar demonstrates that possession was not taken on 8.10.2000. However, the proceedings of the denotification committee dated 23.12.2000 clearly indicates that the possession of land has been taken and the Committee has expressed its displeasure against the action taken by the Commissioner in taking possession when the matter was pending before the Committee and that, as possession has already been taken, it cannot recommend for denotification. Assuming for the purpose of argument and not conceding that the possession has not been taken, no mandamus can be issued to State Government to denotify the petitioner''s land only on the ground that possession is not taken. It is well-settled that no direction could be issued to Government either to acquire land or not to acquire land or to denotify the acquired land, as the same are within the domain of the State.

In so far as the contention that certain lands which were not the subject matter of a preliminary notification were included in the final notification and hence the acquisition proceedings being bad, is sought to be explained to state that the owners of the lands in Sy. Nos. 15/1, 15/2, 20/1, 20/2, 65/2A, 65/2B, 63/1 and 4/1 had filed W.P. Nos. 7443 to 7450/1985 alleging that the Officers of the CITB, Mysore are interfering with their possession and enjoyment of the lands without any authority of law and had sought for the issuance of a writ of mandamus to the then CITB not to interfere with the petitioner''s possession or from demolishing any building existing on the land. It is significant to note that they did not question the validity of the preliminary notification issued on 05.04.1984. Similarly, the owners of land in Sy. Nos. 41/2, 45/2, 40/1, 40/2, 40/3, 46 and 18/4 also filed similar writ petitions seeking asking for similar prayer and in both these writ petitions, this Court had granted an interim order as prayed for, for a period of two weeks from 23.05.1985. Subsequently, those writ petitions were disposed of by this Court by order dated 23.09.1985. After the formation of Datagalli Layout, it was found that while forming the double road, some lands which had not been notified and surrendered, had been utilized and some more land was required for further extension of a double road and therefore, it was found necessary to acquire certain lands which had been notified in the notification dated 5.4.1984 which had not been voluntarily surrendered and which are not covered by the Urban Land (Ceiling and Regulation) Act and therefore, it was proposed to issue a notification for acquiring the said lands only. At that time, it was noticed that in excess of vacant lands in Sy. No. 15 had vested with the State Government under the Urban Land Ceiling and Regulation Act and therefore, it was decided to issue notification only in respect of the lands in Sy. Nos. 27/1, 27/2, 27/3, 27/4, 29/1A, 32, 38/1, 38/2 and 41/2. As there were no objections for the notification, the said preliminary notification was followed by a final notification published on 25.04.1991 under Sections 19(1) and (2) of the KUDA Act. After the final notification was issued on 25.04.1991 for acquiring the lands shown in the said notification which did not include Sy. Nos. 15/1, 15/2 and 40/1, 40/2 and 40/3.

The Final notification was challenged by the land owners in W.P. Nos. 10621 to 10629/1998 contending that they had no intimation about the issuance of the preliminary notification until they saw objections filed in W.P. Nos. 23488 to 23494/1997 and they had not been served with any notice u/s 17(5) of the Act. This Court after finding that there is no evidence of serving of notice u/s 17(5) of the Act, allowed the writ petition, quashed the final notification dated 25.04.1991 directing the petitioner to treat the final notification as notice u/s 17(5) of the KUDA Act and file objections within 30 days from the date of the order, giving liberty to the respondent to proceed further in the matter.

It is under the said circumstances, in the final notification dated 04.10.1999, the lands in Sy. Nos. 15/1 and 15/2 and the lands in Sy. Nos. 40/1, 40/2 and 40/3 had been included. By such inclusion, no prejudice has been caused to the owners of the said lands. The object of inclusion of the survey numbers and the names of the owners and anubhavdars in the preliminary notification was to give an opportunity to them to have their say regarding the acquisition of their lands for public purpose. However, in view of the orders of the learned Single Judge in W.P. Nos. 10621 to 10629/1998 dated 3.9.1998, the land owners of Sy. No. 15/1 and 15/2 and Sy. No. 40/1, 2, 3 were given an opportunity to file objections to demonstrate that the acquisition of land is not needed for a public purpose and therefore, the absence of notification of the said two survey numbers in the preliminary notification did not cause any prejudice or a hindrance to the owners of the lands in the said survey numbers to object to the acquisitions. In that view of the matter, the purchaser of the land from the owners of lands in Sy. Nos. 151/1, 151/2 and 40/1, 40/2 and 40/3 cannot be heard to complain that since the said survey numbers have not been included in the preliminary notification, their inclusion in the final notification issued on 04.10.1999 is invalid.

From the above, it would emerge that the matter having reached the Apex Court and the same having been remitted to the State Government, was with a limited scope of hearing as to whether the State Government had taken an informed decision in issuing the notification dated 15.09.2001 to withdraw from the acquisition. And since it was found that MUDA the beneficiary had not been heard before the issuance of the same, it was to be heard in that regard. If the answer was in the affirmative, then the question of whether the further notification dated 22.07.2002, was warranted and justified would arise for consideration and in which event the petitioner was required to be heard. As the answer by the State Government is in the negative, insofar as the justification for the notification dated 15.09.2001 is concerned, the limited area of scrutiny by this Court is as to whether the decision of the State Government is substantiated by the material on record - and could be sustained as urged on behalf of MUDA or whether the same ought to be quashed along with the notifications for acquisition. The impugned order has dealt with the contentions on behalf of the petitioner at Paragraphs 32 onwards of the said order.

It is settled law that it would not be possible for the State Government to withdraw from the acquisition, if possession of the land had been taken. This limited aspect which was to be considered as a matter of fact in the present case on hand is certainly demonstrated by MUDA.

The fact that the possession of the land has been taken prior to the said date has been well-established not only by the mahazar drawn on 08.12.2000 but also the letter of the Divisional Commissioner dated 25.11.2000 addressed to the State Government in response to the State Government''s letter dated 20.11.2000 detailing taking of possession of the land and the development that have already taken place on several parts of lands in question and also the letter of the Authority dated 15.12.2000 in response to the Government letter dated 20.10.2000, wherein the details of taking possession had been intimated to the Government.

The possession taken is also further evidenced by the fact that in the letter of the Divisional Commissioner dated 18.12.2000 to the Government wherein it is stated that the possession of the land has already been taken, a road has been formed and two ground level reservoirs have been constructed, 10 to 12 connecting roads have been made, underground and open drains have been constructed and therefore, acquisition should not be given up and also the proceedings of the Denotification Committee which had noted with displeasure that the Commissioner has taken possession of the land while the Committee for Denotification was considering the request of the owners for de-notification.

The de-notification of the land which has been notified for acquisition can take place only if the Government is of the opinion that it is not in the interest of the public to acquire the land and public interest is best served by not acquiring the land. This is the only criteria that could be applied by the State Government for denotifying the land u/s 48(1) of the LA Act.

Even the petitioner himself has admitted that the possession of the land was taken and roads were formed and he was seeking that the State withdraw from acquisition in respect of the left over portions of the land.

Further, it is to be noticed that the petitioner claims to have purchased the lands under a sale deed dated 28.09.2001 - which is when the ink on the notifications dated 15.09.2001 had barely dried. It would hardly be possible for the petitioner to dispute the fact that possession had not been taken by the State, when it is evident that he was certainly not in possession as on the dates that the State claims to have taken possession.

In the above view of the matter, the petition lacks merit and is dismissed.

Incidentally, though a large number of authorities are cited by both the parties, it is not necessary to refer to the same given the facts and circumstances of the case.