Smt. Vimal Vijay Patil vs The State Of Karnataka
2024 Latest Caselaw 3677 Kant

Karnataka High Court

Smt. Vimal Vijay Patil vs The State Of Karnataka on 7 February, 2024

Author: Hemant Chandangoudar

Bench: Hemant Chandangoudar

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                                                               WP No. 102799 of 2017




                             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                 DATED THIS THE 7TH DAY OF FEBRUARY, 2024

                                                  BEFORE

                             THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR

                                WRIT PETITION NO. 102799 OF 2017 (LA-UDA)

                        BETWEEN:

                        SMT. VIMAL VIJAY PATIL
                        AGE: 56 YEARS,
                        OCC: HOUSEHOLD WORK,
                        R/O: MAIN ROAD, KANGRALI K.H.,
                        BELAGAVI.
                                                                         ...PETITIONER
                        (BY SRI ANIL KALE, ADVOCATE.)

                        AND:

                        1.   THE STATE OF KARNATAKA
                             REPRESENTED BY ITS PRL.SECRETARY,
                             REVENUE DEPARTMENT AND URBAN
                             DEVELOPMENT DEPARTMENT,
                             VIKASA SOUDHA, BEANGALURU.

                        2.   THE DEPUTY COMMISSIONER
Digitally signed by B
K                            BELAGAVI, DISTRICT: BELAGAVI.
MAHENDRAKUMAR
Location: HIGH
COURT OF                3.   BELAGAVI URBAN DEVELOPMENT AUTHORITY
KARNATAKA
                             REPRESENTED BY ITS COMMISSIONER,
                             ASHOK NAGAR, BELAGAVI.

                        4.   THE SPECIAL LAND ACQUISITION OFFICER
                             BELAGAVI URBAN DEVELOPMENT
                             AUTHORITY, BELAGAVI,
                             ASHOK NAGAR, BELAGAVI.
                                                                    ...RESPONDENTS
                        (BY SRI HANAMANTHARAY LAGALI, AGA FOR R1 AND R2;
                        SRI M A HULYAL, ADVOCATE, FOR R3 AND R4)
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                                                   WP No. 102799 of 2017




    THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
CONSTITUTION OF INDIA, PRAYING TO:

      I)   ISSUE A WRIT OR ORDER OR DIRECTION IN THE
NATURE OF CERTIORARI QUASHING RESOLUTION NO.9 DATED
25.10.2016 PASSED BY THE RESPONDENT NO.3 PRODUCED AS PER
ANNEXURE-A;

      II)  ISSUE A WRIT OR ORDER OR DIRECTION IN THE
NATURE OF CERTIORARI QUASHING ENDORSEMENT BEARING
NO.BENAPRA/BHUSWA/NOC/VINIVA/28/2014-15/6694   DATED
20.03.2015 PRODUCED AS PER ANNEXURE-M;

     III)  ISSUE A WRIT OR ORDER OR DIRECTION IN THE
NATURE OF MANDAMUS DIRECITNG THE RESPONDENT NO.1 TO 3 TO
DELETE THE PETITION LAND IN SY.NO.177/1A MEASURING 2 ACRES
22 GUNTAS OLD SY.NO.177/D OF KANGRALI K.H. VILLAGE, TALUKA
AND DISTRICT BELAGAVI, FROM LAYOUT PLAN OF THE SCHEME
NO.13 OF BUDA, BELAGAVI AND ISSUE NO OBJECTION CERTIFICATE
TO THE PETITIONER IN RESPECT OF THE PETITION LAND TO
DEVELOP THE SAME, AND ETC.,.

    THIS PETITION COMING ON FOR HEARING THIS DAY, THE
COURT MADE THE FOLLOWING:

                                   ORDER

The petitioner has called in question the resolution No.9 dated 25.10.2016 passed by respondent No.3 and the endorsement dated 20.03.2015, issued by respondent No.3, by which, the petitioner's request for issuing no objection certificate for developing the land came to be rejected stating that the land bearing Sy.No.177/D situated at Kangrali K.H. village in Belagavi taluk was included in Scheme No.13, and the subject land is earmarked partially for residential purposes and partially as open space.

2. The petitioner states that in family partition effected between the father and brothers, the land bearing Sy.No.177/D

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measuring 03 acres 03 guntas was allotted to the share of deceased husband. In pursuance of the same, his name was mutated in the revenue records.

3. The husband of the petitioner during his lifetime filed declaration under section 6 of the Urban Land Ceiling Act, and the competent authority in exercise of the powers under section 10(2) of the repealed Urban Land Ceiling Act, passed an order declaring that the petitioner is holding excess land to an extent of 9,143 sq.meters in Sy.No.177/D among other lands. The erstwhile Improvement Board, Belagavi, issued notification for development of Scheme No.13 under section 15A of the Karnataka Improvement of Boards Act, 1976 for acquiring 33 acres 25 guntas 15 annas of land, which culminated in passing of a final notification under the provisions of the Karnataka Urban Development Authorities Act, 1987.

4. The subject land was included in Scheme No.13 though no acquisition proceedings were initiated, and taking advantage of the entry effected in favor of the Government in the revenue records, the subject land was included in the said scheme, and was earmarked partially for residential purposes and partially as open space.

5. `The petitioner along with others instituted the suit in O.S.No.238/2001 for the relief of declaration, permanent injunction and mandatory injunction, to declare that they are the owners in possession of the subject land, and also restraining the Government from interfering with their peaceful possession. The said suit came to be decreed on 04.09.2003,

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and the decree was challenged by the Government in R.A.No.8/2004. In the meanwhile, the petitioner and others filed W.P.No.6974/2004 before this Court challenging the order passed by the Deputy Commissioner dated 07.11.2002, by which, the possession of the subject land was sought to be handed over in favour of the Belagavi Mahanagara Palike.

6. This Court vide order dated 18.08.2010, allowed the writ petition, and quashed the order passed by the Deputy Commissioner holding that the jurisdictional Civil Court in O.S.No.238/2001 has categorically held that the petitioners are in lawful possession of the subject land.

7. The petitioner thereafter submitted an application with the 1st respondent to issue no objection certificate for developing the subject land in accordance with law. Respondent No.3 rejected the application, against which the present writ petition is filed.

8. Learned counsel for petitioner submits that the jurisdictional Civil Court having held that petitioner is in lawful possession of the subject land, and also the proceedings initiated by the competent authority under section 10 of the ULC Act, having abated, the petitioner is entitled for utilizing the subject land in accordance with law, and the inclusion of the subject land in Scheme No.13 is without any right, title, interest over the property. Therefore, the impugned order passed by respondent No.3 is arbitrary and discriminatory and liable to be quashed.

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9. Learned counsel for respondent No.3 submits that the subject land was included in Scheme No.13, and in the said scheme, the subject land is earmarked partially for residential purposes and partially as open space. He further submits that the subject land was acquired by the erstwhile Improvement Board, which culminated in passing of an award, and the compensation was determined and paid to the petitioner's husband. He further submits that an extent of 01 acre 38 guntas 09 annas of land in R.S.No.177/1AP was notified for acquisition in Scheme No.13 and thereafter award was passed and the compensation amount determined has been paid to the respective owner of the subject land. He further submits that an extent of 23 guntas of land is utilized for the formation of roads by the Public Works Department. Therefore the petitioner who has no right over the subject land is not entitled for grant of no objection certificate for development of the subject land, and sought for dismissal of the petition.

10. Learned Addl. Government Advocate for the State would reiterate the submissions made by learned counsel for respondent No.3.

11. Considered the submissions made by the learned counsel for the parties.

12. In a family partition entered into between the father of the petitioner and his brother, the land bearing Sy.No.177/1 was sub-divided, and an extent of 3-00 acres 03-00 guntas was allotted to the share of the father of the petitioner, and the same was assigned with Sy.No.177/D, which is evident from

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ME No.1902 certified on 3.6.1947. The father of the petitioner during his lifetime filed a declaration under Section 6 of the Urban Land (Ceiling and Regulation) Act, 1976, and the competent authority in exercise of power under Section 10 of the said Act passed an order dated 19.8.1980 declaring that, the father of the petitioner was holding excess land to an extent of 9143 sq. meters in Sy.No.177/D among other lands. Thereafter, the name of the government was mutated in the revenue records to the extent of land declared as excess land.

13. The then Improvement Board issued a notification dated 25.7.1986 proposing to acquire the land in Sy.No.177/1A, Sy.No.177/1CB and Sy.No.177/1D belonging to Laxman Jotiba Kangralkar, Basawant Jyotiba Kangralkar and Khashinath Jyotiba Kangralkar. However, the land bearing Sy.No.177/1D belonging to the father of the petitioner viz., Yallappa Jyothiba Kangralkar was not proposed for acquisition, and during his lifetime conveyed a portion of the subject land in favor of third person, and retained 2-00 acres 08-00 guntas 0400 annas.

14. The respondent No.3 having included 2-00 acres 08-00 guntas 04-00 annas of land belonging to the father of the petitioner in scheme No.13 prompted the petitioner and others to file a suit in O.S.No.238/2001. The jurisdictional Civil Court by judgment and decree dated 4.9.2003 held that, the petitioner and others are in lawful possession of 2-00 acres 08- 00 guntas of land in Sy.No.177/1D, and restrained the government from interfering with the peaceful possession, and

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further held that, the lawful possession having not been taken, the proceedings initiated under the provisions of the Urban Land Ceiling Act stands abated. The said judgment and decree was affirmed by the First Appellate Court in R.A.No.8/2004, and has attained finality. Thereafter , the name of Petitioner is mutated in revenue records to an extent of 2 acres 24 guntas assigned with R.S.No.177/1A which is evident from Annexures- K & L.

15. This Court in WP No.6974/2004 disposed of on 18th August 2010 by considering the judgment and decree passed by the jurisdictional Civil Court had quashed the order passed by the Deputy Commissioner to hand over the possession of the subject land in favor of Belagavi Mahanagara Palike.

16. The jurisdictional Civil Court, and also this Court in the aforesaid writ petition, having held that, the petitioner is in lawful possession of the subject land, and the decree is operating against the State Government, the petitioner is entitled for utilizing the vacant subject land.

17. The respondent No.3 has not acquired any right, title over the subject land, however, the development of the subject land is subject to availability of any vacant land. Accordingly, I pass the following:

ORDER

i) The petition is allowed.

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ii) The resolution No.9 dated 25.10.2016 passed by the respondent No.3 vide Annexure-A and the endorsement dated 20.3.2015 vide Annexure-M issued by the respondent No.3 are hereby quashed.

iii) The respondent No.3 to conduct spot inspection of the subject land now bearing R.S.No.177/1A situated at Kangralli Village, in the presence of the petitioner and upon survey, verify as to the extent of actual available vacant land, and if there is any vacant land, issue no objection certificate to develop the said available vacant land to the petitioner. The said exercise shall be concluded within three months from the date of receipt of certified copy of this order.

iv) If any third party right is created in respect of land which is not vacant or is utilized for the formation of roads, the petitioner is entitled for just and proper compensation from the competent authority by initiating acquisition proceedings.

Sd/-

JUDGE

MRK, BKM CT:ANB