Case: Hubli-Dharwad Urban Development Authority Vs. Shekhargowda Chennabasannagowda Phakirgowdar (Since Deceased) By Lr. &amp; Another

Respondent No. 1 filed Writ Petition No. 12564 of 2006 in the High Court of Karnataka for quashing the preliminary Notification dated 06.02.2002 issued under Section 17(3) of the Karnataka Urban Development Authority Act, 1987 (hereinafter referred to as `Act) and final declaration under Section 19 (3) of the Act dated 27.11.2003. The said Notification pertained to acquisition of 54 acres and 39 guntas which included 2 acres and 36 guntas in Survey No. 311/A/1 in Byridevana Koppa Village, Hubli Taluk belonging to the First Respondent. The said Writ Petition was allowed by a judgment dated 02.04.2009 against which Writ Appeal No. 6258 of 2009 was filed by the Appellant. A Division Bench of the High Court dismissed the Writ Appeal by a judgment dated 24.03.2010. Aggrieved by the said judgment, the Appellant has approached this Court by filing this Appeal.2. The First Respondent filed the Writ Petition stating that his family owns 2 acres and 35 guntas in Survey No. 311/A/1 in Byridevana Koppa Village, Hubli Taluk in which there were bore wells, cattle sheds, residential houses and standing trees. It was averred in the Writ Petition that a Notification under Section 17(3) of the Act was issued on 06.02.2002 but no notice was personally served on him. It was also stated in the Writ Petition that a Notification under Section 19(1) of the Act was issued on 07.10.2003 which was published in the Karnataka Gazette on 17.11.2003. It was stated in the Writ Petition that the First Respondent was not aware of the publication in the Gazette and that the Notification issued under Section 17 and the declaration issued under Section 19 of the Act were not served upon him. He was also unaware of the award proceedings. The First Respondent further stated in the Writ Petition that he came to know about the preliminary Notification only in August, 2005 when the officials of the Appellant visited the site and informed him about the acquisition. The First Respondent also stated in the Writ Petition that immediately after he came to know about the acquisition proceedings he approached the authorities and found that no layout was prepared and finalized. The First Respondent averred in the Writ Petition that the preliminary Notification under Section 17(3) of the Act was prepared without complying with the provisions of Section 15(1), 16 and 17 (1) of the Act. He further stated that due to non service of the notice, he lost an opportunity to file his objections. On the basis of the averments mentioned above, the First Respondent sought for quashing of the Notification issued under Section 17(3) and the declaration issued under Section 19(3) of the Act.3. The Appellant filed its Statement of Objections in Writ Petition No. 12654 of 2006 in which it was stated that there were no structures on the acquired land and possession of the said land was taken on 02.09.2005. A Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Gazette on 22.12.2006. It was also stated that personal notice was issued to the First Respondent on 11.09.2001 but he refused to receive the notice on 13.09.2001. The said notice was also published in Samyukta Karnataka Daily Newspaper on 26.07.2001 and Vijaya Karnataka Daily Newspaper on 27.07.2001. It was further averred that the First Respondent was aware of the Notification under Section 19(1) of the Act dated 07.10.2003 which is evident from the fact that he gave an application dated 30.01.2004 for dropping the acquisition proceedings. The said application was rejected on 28.02.2004. According to the Appellant, the acquisition Notification issued under Section 17(3) and the declaration issued under Section 19(3) of the Act were issued after complying with the relevant provisions of the Act and that interference by the High Court was unwarranted.4. By a judgment dated 02.04.2009, a learned Single Judge of the Karnataka High Court allowed the Writ Petition by holding that the objections filed by the First Respondent were not considered before issuance of the final declaration and that the First Respondent was in possession of the land. The learned Single Judge recorded a finding that the property in question is situated in a corner of the layout and the scheme was not implemented in respect of the land belonging to the First Respondent.5. The Division Bench confirmed the judgment of the learned Single Judge by holding that a perusal of the record indicated receipt of objections which were not considered by the Appellant. The Division Bench held that only a xerox copy of the original Mahazar drawn at the time of taking possession was produced in the Court. The Division Bench rejected the submission of the Appellant that possession of the land was taken. The Division Bench further found that the scheme remained unimplemented in respect of the land in dispute.

Reasoning: 9. The High Court quashed the Notification dated 05.02.2002 and declaration dated 27.11.2003 for the reasons that the objections filed by the landowners were not considered before issuance of the final declaration, that the possession of the land was not taken by the authorities and that the scheme was not implemented in respect of the property in question. The First Respondent pleaded in the Writ Petition that he was not aware of the Notification issued under Section 17(3) and the declaration issued under Section 19(3) of the Act. It was further averred in the Writ Petition that he was deprived of an opportunity of filing objections as notice was not given to him personally. We find force in the submission of Mr. Patil that the question of consideration of the objections which were not filed does not arise. In view of the findings recorded by the High Court that a perusal of the record disclosed that objections were filed by the Respondent and were not considered, we summoned and examined the relevant record carefully. The minutes of the meeting ofUrban Development Authority held on 06.02.2002 was filed as Annexurealong with the written submissions of the Appellant. The recommendations of the Chairman of theUrban Development Authority for acquisition of lands of Byridevana Koppa Village were discussed in the said meeting. The First Respondents land was part of the total extent of 54 acres and 39 guntas of land which was sought to be acquired for the housing scheme. It was stated in the minutes that objections filed by the landowners/interested persons of the lands included in the Notification issued under Section 17(3) of the Act were considered by the Chairman of theUrban Development Authority. It is clear from the said minutes that out of 19 blocks of land which were acquired, landowners of only 10 blocks filed their objections which were considered. Survey No. 311/A/1 does not find place in the said 10 blocks. A draft award dated 31.01.2005 was also placed on record by the Appellant in which the names of the landholders/ landowners whose lands were acquired and who filed objections were given. The Respondents name does not find place in the said list of persons who had submitted their objections. The High Court has committed an error in holding that the First Respondent filed his objections which were not considered.10. Admittedly, the land was acquired for a housing scheme. It was submitted by the Appellant that plots have already been allotted. The land belonging to the First Respondent has been earmarked for civic amenities. In view of the interim order of status quo passed by the High Court on 13.09.2006, no development could take place on the land. The High Court ought not to have held that the Appellant was responsible forof the scheme qua the land of the Respondent. It was submitted by the Appellant that the land is very much needed for development of civic amenities.11. A Panchnama was filed by the Appellant to show that possession of the land was taken on 02.09.2005 in the presence of five Panchas. A Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Karnataka State Gazette on 21.12.2005. It is no more res integra that a Notification issued under Section 16 (2) of the Land Acquisition Act, 1894 shall be evidence of the fact that possession was taken, though not conclusive. The prevaricating stands taken by the First Respondent about the possession of the land does not help his cause. On 30.01.2004, the power of attorney holder of the First Respondent submitted a representation to the Chairman of theUrban Development Authority requesting for exemption of the land from acquisition. He stated in the said representation that he was running a ginning factory on the said land. He also stated that he employed 40 workmen for whose housing the land was needed. The said representation was rejected by the Commissioner,Urban Development Authority on 28.08.2004 by stating that the acquisition proceedings were at a final stage and so the request cannot be acceded to. In the written submissions filed by the Respondent, it is stated that a farm house along with a cattle shed and a mobile tower exist on the land. Some photographs and a lease agreement have been filed in support of the said averments. The submission made by the First Respondent regarding theof his objections is contrary to the pleading in the Writ Petition. The First Respondent is also guilty of taking contradictory stands in the matter of possession. We see no reason to doubt the Panchnama evidencing taking over of possession. In addition, the Notification under Section 16(2) of the Land Acquisition Act, 1894 was published in the Gazette. Any attempt made by the First Respondent to show that he is still in possession is of no avail.