Karnataka High Court
Belagavi Urban Development Authority vs Shailaja W/O Ramesh Javakar (Javalkar) on 22 February, 2024
Author: S G Pandit
Bench: S G Pandit
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W.A.No.100286/2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
WRIT APPEAL NO.100286 OF 2021 (LA-UDA)
BETWEEN:
BELAGAVI URBAN DEVELOPMENT AUTHORITY,
BELAGAVI, ASHOK NAGAR, BELAGAVI.
JAGADISH
TR REPRESENTED BY ITS COMMISSIONER.
Digitally signed
by JAGADISH T R
...APPELLANT
Date: 2024.02.23
10:34:44 +0530 (BY SRI. MURALIDHAR ATMARAM HULYAL, ADVOCATE)
AND:
1. SHAILAJA W/O RAMESH JAVAKAR (JAVALKAR)
AGE. 70 YEARS, R/O. NO.21 COURT STREET,
CAMP, BELAGAVI,
(DIED DURING THE PENDENCY OF THE WRIT PETITION),
SINCE DECEASED BY HER LRS RESPONDENT NO.2 TO 4.
2. SHRI. AJAY S/O RAMESH JAVAKAR (JAVALKAR)
AGE. 47 YEARS, R/O. NO.21 COURT STREET,
CAMP, BELAGAVI.
3. SHRI. BALASAHEB S/O RAMESH JAVAKAR (JAVALKAR)
AGE. 48 YEARS, R/O. NO.21 COURT STREET,
CAMP, BELAGAVI.
4. SHRI. APPASAHEB S/O KRISHNAJI JAVAKAR (JAVALKAR)
AGE. 49 YEARS, R/O. NO.21 COURT STREET,
CAMP, BELAGAVI.
5. THE STATE OF KARNATAKA
REP BY SECRETARY, REVENUE DEPARTMENT
VIKAS SOUDHA, BENGALURU.
6. THE DEPUTY COMMISSIONER
BELAGAVI.
...RESPONDENTS
(BY SRI. GIRISH A. YADWAD, ADCOVATE FOR C/R.NO.4,
SMT. KIRTILATA R. PATIL, HCGP FOR R5 & R6)
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W.A.No.100286/2021
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING TO SET ASIDE THE IMPUGNED ORDER
PASSED BY LEARNED SIGNE JUDGE IN WP.NO.63992/2011 DATED
07.10.2021 BY ALLOWING THIS APPEAL, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED ON
15.02.2024 COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT
This intra-Court Appeal under Section 4 of the
Karnataka High Court Act, 1961 (for short, '1961 Act') is
directed against the order dated 07.10.2021 in
W.P.No.63992/2011 by which, writ petition is allowed
quashing Notifications including the Notification dated
23.03.1989 issued under Section 19(1) of the Karnataka
Urban Development Authorities Act, 1987 (for short, '1987
Act') and all acquisition proceedings pursuant thereto in
relation to the subject land of the petitioner measuring 15
guntas 12 anas in R.S.No.1388/2A of Belagavi.
2. The appeal is taken up for final disposal at the
stage of admission itself with the consent of the learned
counsel appearing for the parties.
3. The parties to the appeal would be referred to as
they stand before the Writ Court. Before the Writ Court,
appellant herein was respondent and respondent Nos.1 to 4
were petitioners and respondent Nos.5 and 6 were respondent
Nos.5 and 6.
4. Brief facts of the case are that the petitioners
approached learned Single Judge under Article 226 of the
Constitution of India with a prayer to declare that the
respondent No.2 - Authority has acquired only 22 guntas of
land in Sy.No.1388/2A of Belagavi City pursuant to the
Notification dated 17.02.1989 and they have no right or
interest in respect of the balance land of 15 guntas 12 anas;
for a direction to the Belagavi Urban Development Authority
(BUDA) not to dispossess the petitioners in respect of 15
guntas 12 anas of land in Sy.No.1388/2A; and also for
declaration that the BUDA is the owner of 18 guntas of land
out of 22 guntas acquired. The above prayers were sought on
the ground that though under Preliminary Notification dated
04.03.1982 issued under Section 15 of City Improvement
Board Act, (for short, 'the Act') for acquisition of total land of
6 acres including 37 guntas 12 Anas land of petitioners, land
of petitioners to an extent of only 22 guntas was acquired,
passing award and taking possession. No award is passed and
possession is taken in respect of 15 guntas 12 Anas of land.
Further, it is the case of the petitioners that though award is
passed in respect of 22 guntas, possession of only 11 guntas
was taken initially and thereafter another 11 guntas. Since no
award is passed and possession is not taken in respect of land
to an extent of 15 guntas 12 Anas of petitioners' land, it is
prayed to declare that BUDA has no right or interest in respect
of the said land.
5. On appearance, respondent No.2 filed its
statement of objections contending that initially, notification
under Section 15 of the City Improvement Board Act, dated
04.03.1982 was issued for acquisition of total land of 6 acres
in Belagavi City including 37 guntas 12 anas of petitioners'
land. Thereafter, under 1987 Act, acquisition proceedings was
continued and in respect of 37 guntas 12 anas, declaration
under Section 19(1) of 1987 Act was issued on 23.03.1989.
But, respondent No.2 specifically contended that the Special
Land Acquisition Officer (for short, 'SLAO') passed award on
06.06.1990 in respect of 22 guntas of land out of 37 guntas
12 Anas, as the balance 15 guntas 12 Anas was leased to the
Government of India for TV Relay Station. Further, it is stated
that respondent No.2 took possession of 11 guntas of land out
of 22 guntas initially and thereafter 11 guntas. The petitioners
sought reference under Section 18 (1) of the Land Acquisition
Act, 1894 (for short, '1894 Act') in respect of 11 guntas of
land. The petitioners had also approached this Court in
W.P.No.13159/1990 challenging Section 12(2) Notice issued
under 1894 Act and the said writ petition was dismissed by
order dated 20.06.1996 and also writ appeal filed against the
said order in W.A.No.7081/1996 was dismissed on
19.08.1998.
6. The statement of objections of respondent No.2
also indicates that the father of the petitioners 2 to 4 had also
filed O.S.No.697/1993 before the III Additional Civil Judge,
Belgaum for the relief of permanent injunction in respect of
land measuring 26 guntas 12 anas and there was interim
injunction, which prevented the respondents from taking
possession. The plaint in O.S.No.697/1993 was rejected by
judgment and decree dated 04.06.2002 and thereafter
possession of nearly 11 guntas was taken on 15.07.2002.
Thus, it is contended that land measuring 21 guntas 4 anas
vested with respondent No.2. Against rejection of plaint, the
petitioners 2 to 4 had preferred R.A.No.501/2009 and
RSA.No.2370/2007. It is contended that as the petitioners
have suppressed the fact of filing Original Suit, Regular Appeal
and Regular Second Appeal, the petitioners would not be
entitled for any relief.
7. The learned Single Judge on consideration of rival
contentions of the parties, was of the opinion that the BUDA
has failed to complete the acquisition proceedings in respect
of the subject land measuring 15 guntas 12 anas even after
long lapse of 31 years, at least 21 years till the date of the
present petition was filed is a clear indicator of the fact that
respondent/BUDA has abandoned the acquisition proceedings
and the same stood lapsed insofar as subject land is
concerned.
8. Learned counsel for the appellant/respondent No.2
Sri.M.A.Hulyal would contend that the order of the learned
Single Judge is opposed to the material facts on record and
learned Single Judge failed to appreciate that respondent No.2
could not have passed award and taken possession in respect
of subject land i.e., 15 guntas 12 anas, as the said land was
leased to Government of India. Moreover, he submits that
petitioners had filed O.S.No.697/1993 and in the said suit,
injunction was operating against the respondents, which
prevented respondent No.2 from completing the acquisition
proceedings.
9. Learned counsel for the appellant/respondent
would contend that learned Single Judge failed to appreciate
that the petitioners have suppressed the fact of filing suit and
since there is suppression of material fact, the petitioners
would not be entitled to discretionary relief under Article 226
of the Constitution of India. In that regard, learned counsel
places reliance on a decision of the Hon'ble Apex Court
reported in 2022 (2) KLJ 225 (SC) (K.JAYARAM AND
OTHERS VS. BANGALORE DEVELOPMENT AUTHORITY
AND OTHERS).
10. Learned counsel Sri.M.A.Hulyal would contend that
the petitioners never challenged the acquisition proceedings
or declaration under Section 19 (1) of 1987 Act issued on
23.03.1989 in respect of 37 guntas and 12 anas of land and
without challenging the acquisition proceedings, the
petitioners would not be entitled for any relief. Moreover, he
submits that acquisition proceedings has become final and
scheme is implemented. It is also submitted that Notification
issued under Section 19(1) of 1987 Act still subsists and land
notified is not de-notified. Further, he submits that it is open
for SLAO to pass supplementary award. On these grounds,
learned counsel would pray for allowing the writ appeal and to
set aside the impugned order under challenge.
11. Per contra, learned counsel Sri.Girish A Yadwad for
the petitioners supporting the impugned order would submit
that appellant/respondent No.2 has failed to make out any
ground to interfere with the impugned order. Learned counsel
would submit that subject matter of the writ petition is only
with regard to 15 guntas and 12 anas of land in
R.S.No.1388/2A of Belagavi City, in respect of which, no
award is passed and admittedly, possession is not taken.
Further, learned counsel would point out from the statement
of objections and submits that respondent No.2 has admitted
that no award is passed in respect of the land in question and
also that no possession is taken.
12. Learned counsel Sri.Girish Yadwad would further
submit that petitioners have not suppressed material fact as
contended by the learned counsel for the
appellant/respondent No.2. It is submitted that the earlier writ
petition and O.S.No.697/1993 and proceedings arising out of
the said suit are in respect of 22 guntas of land in respect of
which award was passed; 15 guntas 12 Anas of land which is
the subject matter of the present land is/was not the subject
matter of earlier writ petition or suit. Hence, he submits that
non-mentioning of filing of suit would be inconsequential and
it would not amount to suppression of material fact. In fact,
he submits that filing of earlier writ petition is stated in the
writ petition. Referring to Section 27 of the 1987 Act, learned
counsel would submit that if the BUDA fails to execute the
scheme substantially within a period of five years from the
date of declaration under Sub-Section (1) of Section 19 of
1987 Act, the scheme shall lapse. Therefore, he submits that
when the learned Single Judge has come to the conclusion
that scheme has lapsed insofar as the land in question, there
need not be any de-notification in respect of the land in
question. Thus, he prays for dismissal of the writ appeal.
13. Having heard the learned counsel appearing for
the parties and on perusal of the writ appeal papers, the only
point which falls for consideration is,
'Whether the impugned order of the
learned Single Judge requires interference?'
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14. Answer to the above point would be in the
'Negative' for the following reasons:
15. It is pertinent to note here itself that the subject
matter of the present writ petition relates to land measuring
15 guntas 12 Anas in RS.No.1388/2A of Belagavi City.
Admitted facts are that the respondents under Notification
dated 04.03.1982 issued under Section 15 of the Act notified
for acquisition totally 6 acres of land including 37 guntas of
the petitioners. Final declaration under Section 19(1) of 1987
Act was issued on 23.03.1989 in respect of the lands in
question including 37 guntas of petitioners' land. But, award
was passed in respect of the petitioners' land to an extent of
only 22 guntas on 06.06.1990 and possession was taken in
respect of 11 guntas of land initially and another 11 guntas on
11.07.2002. Admittedly, till this date award is not passed and
possession is not taken in respect of the land measuring 15
guntas 12 anas, which is the subject matter of present writ
petition.
16. Based on the material on record, learned Single
Judge has rightly come to the conclusion that
O.S.No.697/1993 is in respect of 22 guntas of land and suit or
proceedings arising from the suit not included land measuring
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15 guntas 12 anas, which is the subject matter of present writ
petition. The statement of objections filed on behalf of
respondent No.2 at paragraph 10, 2nd respondent - BUDA
admits that O.S.No.697/1993 relates to only 22 guntas (typed
as 26 guntas), relevant portion statement of objections reads
as follows:
"10. It is also pertinent to note that during the
pendency of the acquisition proceedings, the husband of
the petitioner No.1 and father of petitioner No.1 and
father of petitioner No.2 to 4 namely Rmesh Krishnaji
Jawalkar had also filed a suit bearing OS No.697/1993 on
the file of III Addl. Civil Judge (Jr.Dn.), Belgaum for the
relief of permanent injunction in respect of land
measuring 26 guntas 12 annas inter alia contending that
he is an actual possession, use and enjoyment of the
said land and the same has not been acquired by
respondent No.2 etc., and the said suit, the Hon'ble
Court was pleased to issue Ad-interim injunction
restraining the respondent No.2 from interfering with the
alleged possession of the said land by him. Therefore,
the SLAO was unable to take the actual possession of
remaining 11 guntas of land out of the 22 guntas of
awarded land."
17. In W.P.No.13159/1990, the petitioners challenged
notice issued under Section 12(2) of 1894 Act and the said
notice related to only in respect of acquired land of 22 guntas
and admittedly, the land involved in the present writ petition
was not the subject matter of the said notice. As the land
involved in the present writ petition was not the subject
matter of earlier proceedings, the contention of the
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respondent No.2/appellants that there is suppression of
material facts cannot be accepted.
18. Respondent No.2/appellants admit in their
statement of objections that acquisition proceedings in respect
of 21 guntas 4 anas (22 guntas) of land are concluded and
they have taken possession of the said land. Only reason for
not passing award and not taking possession of 15 guntas 12
anas of land is that third parties were in possession i.e., Union
of India. Learned Single Judge has rightly held that land in
possession of third parties would not be an impediment to
pass award and take possession. When the respondent
No.2/appellant admits that no award is passed, possession is
not taken and land is not utilized for the purpose for which it
was notified, it is to be held that acquisition proceedings is
abandoned and acquisition is lapsed.
19. Learned counsel for the respondent No.2/appellant
placed reliance on the decision of the Hon'ble Apex Court in
K.JAYARAM (supra) to contend that since petitioners
suppressed the fact of filing suit and other proceedings, they
would not be entitled for any relief. It is true, as held by the
Hon'ble Apex Court, that a person who approaches the Court
with unclean hands and suppressing material facts, would not
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be entitled for discretionary relief under Article 226 of the
Constitution of India. But in the above referred case, though 8
guntas of land was left out from acquisition, the same was
utilized and sites were formed by BDA and suit was filed in
respect of the said 8 guntas of land. But, in the instant case,
no award is passed nor possession of land to an extent of 15
guntas 12 anas is taken, which is admitted by respondent
No.2/appellant. Moreover, the subject matter of the writ
petition i.e., 15 guntas 12 anas of land was not the subject
matter of earlier suit or any other proceedings. Therefore, the
decision in K.JAYARAM (supra) would not assist the
respondent No.2/appellant herein.
20. For the reasons recorded above, there is no merit
in the appeal and no ground is made out to interfere with the
impugned order of the learned Single Judge. Accordingly, writ
appeal stands rejected.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
