Lakshmamma vs The Mysore Urban Development ...
2022 Latest Caselaw 10183 Kant

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                                                         WP No. 10852 of 2010


                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 04TH DAY OF JULY, 2022

                                              BEFORE
                          THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                          WRIT PETITION NO. 10852 OF 2010 (LA-UDA)

                   BETWEEN:
                   1. LAKSHMAMMA,
                      W/O.PUTTASWAMACHARI,
                      AGED 55 YEARS

                   2. SOMASUNDARA MURTHY
                      S/O.PUTTASWAMACHARI,
                      AGED 42 YEARS,

                   3. CHELUVARAJU
                      S/O.PUTTASWAMACHARI,
                      AGED 36 YEARS,

                   4. SANNACHARI
                      S/O.NARAYANACHARI,
                      AGED 55 YEARS,

                   5. RAJASHEKAR
                      S/O.NARAYANACHARI,
                      AGED 45 YEARS,

Digitally signed
by POORNIMA
                   ALL ARE RESIDING AT
SHIVANNA           HINKAL VILLAGE AND POST,
Location: HIGH
COURT OF           MYSORE.
KARNATAKA
                                                                ...PETITIONERS
                   (BY SRI. T A KARUMBAIAH .,ADVOCATE)
                   AND:


                   1. THE MYSORE URBAN DEVELOPMENT AUTHORITY,
                      JHANSI LAKSHMI BAI ROAD,
                      MYSORE-1.
                      BY ITS COMMISSIONER.
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                                       WP No. 10852 of 2010


2. THE SPECIAL LAND ACQUISITION OFFICER
   JHANSI LAKSHMI BAI ROAD,
   MYSORE-1.

3. THE STATE OF KARNATAKA
   REVENUE DEPARTMENT,
   M.S. BUILDING,
   DR. B.R. AMBEDKAR ROAD,
   BANGALORE.
   BY ITS SECRETARY
                                               ...RESPONDENTS
(BY SRI.S.V.DESAI, ADVOCATE FOR R1 & R2;
    SRI.B.V.KRISHNA, AGA FOR R3)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE
ACQUISITION PROCEEDINGS INITIATED BY THE RESPONDENTS
PURSUANT TO ANNEXURE-D THE PRELIMINARY NOTIFICATION
DATED 23.12.1991 GAZETTED ON 2.1.1992 AND ANNEXURE-E THE
FINAL NOTIFICATION DATED 10.12.1992 GAZETTED ON 31.12.1992
ARE LAPSED IN SO FAR AS IT RELATES TO THE PETITIONERS LAND
IS CONCERNED BECAUSE THE RESPONDENTS HAVE NOT
IMPLEMENTED THE SCHEME AS PER SECTION 27 OF THE
KARNATAKA URBAN DEVELOPMENT AUTHORITIES ACT AND ETC.,

      THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

1. The petitioners are before this court seeking for the

following reliefs:

"(i) Declare that the acquisition proceedings initiated by the respondents pursuant to Annexure-D the preliminary notification dated 23.12.1991 gazetted on 2.1.1992 bearing No.PLA 2/91-92 and Annexure-E the final notification dated 10.12.1992 gazetted on 31.12.92 NO.VNE 837/MIB 92 are lapsed insofar as it relates

WP No. 10852 of 2010

to the petitioners land is concerned because the respondents have not implemented the scheme as per Section 27 of the Karnataka Urban Development Authorities Act.

(ii) issue a writ of mandamus directing the respondents not to take any coercive steps against the petitioners.

(iii) issue any other writ, order or direction as this Hon'ble Court deems fit in the circumstances of the case."

2. The petitioners claim to be the joint owners in

possession and enjoyment of an extent of 37 guntas

of land in Sy.No.114/3 of Basavanahally village,

Mysore taluk and district, the same being an

ancestral property. The said land of the petitioners

was sought to be acquired under a preliminary

notification regarding the scheme under Section

17(1) of the Karnataka Urban Development

Authorities Act, proposing to acquire certain lands in

the Basavanahalli village of Mysore taluk, for

formation of Vijayanagar IVth stage.

3. The preliminary notification came to be gazetted on

2.1.1992, final notification came to be issued on

WP No. 10852 of 2010

10.12.1992, gazetted on 21.12.1992. The award

came to be passed on 18.7.1994.

4. The contention of the petitioners is that there is no

sanction under section 18(3) of the Act, even if there

is a scheme, the same is lapsed in terms of Section

27 of the Act on account of the scheme not having

been substantially implemented. It is on this ground

that Sri.T.A.Karumbaiah, learned counsel submits

that the aforesaid reliefs have to be granted. In

respect of the above, Sri.T.A.Karumbaiah, relies upon

the decision of this court in ILR 2010 KAR 62, more

particularly, paras 18, 30 and 34 hereunder

reproduced for easy reference:

"18. On the basis of the pleadings and the grounds urged and legal contentions advanced by the Learned Counsel for the parties, the following points would arise for consideration:--

i) Whether the sanction of scheme by the State Government without considering the statement of objections to the proposed acquisition of lands of the petitioners and not furnishing is legal and valid?

WP No. 10852 of 2010

ii) Whether the acquisition proceedings are liable to be quashed for not conducting enquiry and considering the objections as contemplated under Section 5-A of the Act?

iii) Whether possession of the lands were taken over as contemplated under Section 16(2) of L.A.Act read with Section 36(3) of KUDA Act?

iv) Whether the decision rendered by this Court under Annexure-Rl has to be applied to these cases?

v) Whether the writ petitions are liable to be dismissed on the ground of delay and laches?

30. Since possession of the lands remained with the petitioners, mere publication of Section 16(2) of L.A.Act Notification to evidence the fact of taking possession cannot be accepted by this Court. That apart, the Notification is issued by the Special Land Acquisition Officer of MUDA and it is not notified either by the Deputy Commissioner of the District or Assistant Commissioner of the Revenue sub-division. Therefore, Section 16(2) of the LA Act Notification has no legal sanction at all and it cannot be considered as proof for having taken over possession of the lands of the petitioners from them. Consequently, Point (iii) is answered in the negative.

WP No. 10852 of 2010

34. For the reasons stated above, petitioners succeed. The impugned Notifications are liable to be quashed. However, since MUDA claims that sites have been formed, allotted and some of the allottees have constructed houses and are residing therein, we confine relief only in so far as the lands of the petitioners are concerned."

5. He relies upon the decision of the Division Bench of

this court in W.A.Nos.3785-3790/2009, more

particularly, para 2 thereof hereunder reproduced

for easy reference:

"2. In view of his submissions, W.A.No.3785/2009 is dismissed as not pressed. Liberty is granted to the appellant to raise the contentions in the remaining appeals."

6. He also relies upon the decision of the Division Bench

in W.A.Nos.3786-3790/2009, more particularly para

7 hereunder reproduced for easy reference:

"7. For the aforesaid reasons, we are of the view that since the act of the appellant-MUDA amounts to gross discrimination, the present appeals cannot be considered on merits. In view of the withdrawal of the writ appeal No.3785 of 2009, these appeals are

WP No. 10852 of 2010

consequently, dismissed with the aforesaid observations."

7. Per contra, Sri.S.V.Desai learned counsel for

respondent Nos.1 & 2 submits that there is a

substantial compliance with the scheme inasmuch as

1255 sites have been formed in the Vijaynagar II

Stage. This aspect has been considered by this court

in several matters where the petitions which had

been filed have been dismissed.

8. He submits that in one earlier writ petition in

W.P.No.40889/2003 which had been filed as regard

the very same Sy.No.114/3 measuring 18.1/2 guntas

wherein similar grounds had been raised and the said

Writ Petition came to be dismissed vide order dated

7.11.2003. The entire extent of Sy.No.114/3 being

37 guntas which had been notified, the question of

the present petition being maintainable after the

earlier petition in W.P.No.40889/2003 having been

dismissed, does not at all arise. He therefore submits

WP No. 10852 of 2010

that the present writ petition also requires to be

dismissed.

9. Apart from the above, he relies on the order passed

in W.P.Nos.15648-50/1998 dated 4.3.1998,

W.P.No.39097/2003 dated 5.1.2012,

W.A.No.838/2012 dated 23.1.2013,

W.P.No.39101/2003 dated 5.1.2012,

W.A.No.767/2012 dated 27.1.2012 and

W.A.No.2908/2019 dated 17.3.2020, and contends

that the Writ Petitions which had been filed as regard

the lands of the family members of the petitioners in

or around Sy.No.114/3 of Basavanahalli village have

also been dismissed, rejecting the very same

contention as regard lapsing raised in those Writ

Petitions.

10. He submits that the contention as regards the non-

sanction of the scheme has also been considered and

therefore, finding of this court in all those matters as

WP No. 10852 of 2010

regards the surrounding lands would equally apply to

the present case. This court having categorically

come to a conclusion that there is no lapsing of the

scheme on account of the substantial implementation

of the scheme, the same would apply to the present

case also. On this ground, he submits that the above

petition is required to be dismissed.

11. Having gone through the orders relied upon by

T.A.Karumbaiah and S.V.Desai, the judgment relied

upon by T.A.Karumbaiah in ILR 2010 KAR 62, is

regards the land covered under Sy.Nos.122/1, 123/1

and certain other survey number which are nowhere

related to or connected with the survey number in

question in the present matter. The said survey

numbers are not situate near the survey number of

the petitioners in the present matter. Hence, the

facts which have been stated therein are germane

only to that case and not to this case.

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WP No. 10852 of 2010

12. As regards the present case, the orders passed by

this court in W.P.No.40889/2003 wherein the family

member of the petitioners had filed another petition

as regards 18 1/2 guntas of land in Sy.No.114/3 is

very much relevant inasmuch as this court has, after

considering all arguments, has passed the order

rejecting the claim of the petitioners therein as

regards lapsing of the scheme. This court having

categorically come to a conclusion in respect of the

very same Sy.No.114/3 that there is no lapsing, the

present contention as regards the very same survey

number cannot be maintained. Similarly, the other

decisions referred to by Sri.S.V.Desai in the other

writ petitions referred above are relevant to

properties in and around the above property wherein,

this court has rejected the claim of lapsing. Hence,

there would be no requirement by this court to again

go through the very same contention when there is a

finding already given as regards the very same area.

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WP No. 10852 of 2010

13. In view of the above, I am of the considered opinion

that there are no grounds made out in the present

writ petition and as such, the Writ Petition stands

dismissed.

Sd/-

JUDGE

CBC