Determination of ‘excess land’ depends upon the status of land during commencement of the Principal Act: Supreme Court

dated 26.03.2009 dismissing Writ Appeal No. 7758 of 2003 ULC] filed by the Appellant herein against the order dated 2. The facts leading to this appeal are as follows: Five properties Survey Nos. totally measuring 3 acres and 11 cents situated in Ullal village Mangalore Agglomeration originally belonged to the joint family of two sisters namely Smt. Korapalu three children and Smt. Nemu Sapalyathi had seven children After the death of the two sisters the Appellant’s case is that dated 9.01.1984. Through the said partition deed Smt. Leela Sapalyathi daughter of Smt. Korapalu Sapalyathi allegedly came 3. The Urban Land Act 1976 hereinafter ‘Principal Act’) came into force in Karnataka on 17.02.1976. Padmanabha one of the seven children of Smt Nemu Sapalyathi filed a statement under Section 6(1) of the family property. Thereafter the Deputy Commissioner and Competent Authority Mangalore Urban Agglomeration Respondent No. 2 herein hereinafter ‘Competent Authority’ the declarant i.e. Padmanabha to surrender excess vacant land of 9 489.48 sq. mts which included land falling within Survey family property had been divided through the aforementioned 4. On 5.12.1994 the Competent Authority passed an order holding that the partition deed having been effected on 9.01.1984 i.e. subsequent to the commencement of the declarant be treated as excess vacant land to be surrendered Subsequently on 16.10.1996 the Competent Authority passed an award fixing compensation for the said excess land at Rs.15 630 ­. In the said award it was stated that Gazette notification was made in respect of acquisition of the land on purchase and has been in possession till date. The Appellant 1993­1994 and 1994­1995. The Appellant states that he was unaware of the Competent Authority’s orders dated 5.12.1994 and 16.10.1996 mentioned supra. In April 2001 the Appellant of the RTC. It was at this stage that he noticed that the the Appellant was apprised of the proceedings under the Principal Act and the subsequent orders passed by the had not issued notice to the Appellant regarding taking of possession of the suit property. That in any case the Competent Principal Act. The said petition was rejected by the Competent Writ Petition No. 35449 2001 which was dismissed vide order dated 21.10.2003. The Appellant’s Writ Appeal No. 7758 2003 ULC] before the Division Bench of the High Court was also dismissed vide impugned order dated 26.03.2009 with certain observations. Aggrieved the Appellant has come before this i) That vide partition deed dated 9.01.1984 Smt. Leela Sapalyathi obtained 1983 sq. mts. of land in the joint family Schedule 1 Category D of the Principal Act a person is entitled to hold 2000 sq. mts. of land. In such case the Competent Authority erred in concluding that the declarant Padmanabha fact in light of the partition deed Padmanbha has no right to file of the suit property and therefore the entire proceedings are objections were filed on 1.07.1985. However the Competent had been paid. Since neither compensation had been paid nor possession been taken on the date of coming into force of the Repeal Act i.e. on 8.07.1999 the orders passed by the acre in Survey No. 53 3B2 of Ullal Village have been declared declaration filed by Padmanabha under Section 6(1) of the the said date i.e. sale of suit property to the Appellant without the Principal Act the suit property vests with the Government free from all encumbrances. Accordingly the necessary entries were made in the Government’s name in the RTC. Hence the put forth his objections and the same were considered by the iv) Since the Appellant had not filed the declaration under vi) The order dated 5.12.1994 passed by the Competent Authority is well within jurisdiction. The declaration filed by Proper notices were issued to the declarant at all stages. The submissions on record we find ourselves unable to completely 11. The learned Single Judge dismissed the Appellant’s writ petition on the sole ground that the partition deed dated 9.01.1984 that the Appellant had heavily relied on in furtherance of his submissions was not produced before the “4. It is relevant to observe here that the petitioner a case before the respondent no.2. Even before this Court the petitioner had not filed any document as that of the partition deed to show that the subject 12. The Division Bench on the other hand while dismissing the declarant Padmanabha and his family members had effected would still be subject to the proceedings initiated under the Principal Act. The Division Bench further observed that the filing of the declaration by Padmanabha and thus there was no obligation on the Competent Authority to issue notice to the Competent Authority by ‘every person holding vacant land in excess of the ceiling limit at the commencement of the Act…’ to be made considering the status of the land at the time of of the declaration. In our considered opinion since it is an admitted fact that the partition if any was only effected after the the Act. Hence to this limited extent we concur with the findings 14. We have also given due consideration to the provisions of Section 8 and Section 9 of the Principal Act and in our opinion the aforementioned Sections make it incumbent on the to be heard only to the ‘person concerned’ i.e. the person who as per Section 10(1) of the Principal Act. The Competent 15. Now coming to the question of possession it is the Appellant’s contention that subsequent to the declaration he acquired the suit property from Smt. Leela Sapalyathi by sale property as it was a portion of the 1 983 sq. mts. of the joint “4. All proceedings relating to any order made or immediately before the commencement of this Act before any court tribunal or other authority shall Provided that this section shall not apply to the proceedings relating to sections 11 12 13 and 14 of the principal Act in so far as such proceedings are relatable to the land possession of which has been taken over by the State Government or any person Section 3(1)(a) of the Repeal Act which provides for a savings clause throws light on this by stating that the repeal shall not the concerned State Government. This is further qualified in Section 3(2) which states that vacant land vested in the State not been taken over shall be restored only once any the question of current possession of the suit property is us. This is because if the Appellant does enjoy possession as and possession over the suit property. However neither the title on Smt. Leela Sapalyathi nor the sale deed dated have been produced before this Court. There is thus nothing on record to establish Appellant’s purchase of possession of or pray for abatement of the proceedings which are the subject matter of this appeal being in possession of the suit property award of compensation for the excess land states that the Competent Authority had taken over possession of the suit property with effect from 12.07.1996 i.e. before the passage of the Repeal Act. In our opinion there is nothing on record that the Competent Authority or the Appellant herein. Given the been taken after the proceedings initiated under the Act the order is ceased to have any effect and the perusal of the order discloses that 5 Sy. Nos. were involved in the declaration from the order it is not possible to make out in which survey number the excess land falling within any particular survey possession it would not be in consonance with the order. If really possession has not yet been taken under the repealed Act the petitioner is entitled to continue in possession of the land. All these matter challenging the order under Section 10 filed by the declarant. Notwithstanding the dismissal of the writ appeal or writ petition it is open to the appellant petitioner to work out his remedy in this aspect of the matter and thus set aside the impugned judgment. It was incumbent on the Division Bench to enquire into and settle the questions of fact arising from the present of the suit property and resultantly whether he had the locus the proceedings and prevented the inefficient proliferation of factual finding as to the question of the Appellant’s ownership and possession of the suit property in his judgment dated made a part of the proceedings heretofore. Since the other original owners of the joint family property have accepted the orders of the Competent Authority in so far as they have not questioned the said orders the Division Bench will confine its 22. The appeal stands disposed of accordingly. No order as to

Summary: The determination of ‘excess land’ is to be made considering the status of the land at the time of commencement of the Principal Act, and not at the time of filing of the declaration. The section 6 of the Principle Act, which requires the filing of statement before the competent authority for vacant land and ceiling area, states ‘at the commencement of the Act’ in its provision and not the time of filing the declaration. This principle was upheld by the Supreme Court presided by J. MOHAN M. SHANTANAGOUDAR &amp; J. VINEET SARAN in the case of U.A. Basheer Thr. G.P.A. Holder vs. State of Karnataka &amp; Anr. [CIVIL APPEAL NO. 3032 OF 2010]. In the present case, five properties totally measuring 3 acres and 11 cents, situated in Ullal village, Mangalore   Agglomeration, originally belonged to the joint family of two sisters. One had three children and the other had seven children. After their death, the Appellant’s case is that their ten children benefited through a registered partition deed. Through the said partition deed a share of 1983 sq. mts. of land, including land to the extent of 30 cents, children got their share. The Urban Land Act, 1976 came into force in Karnataka and Padmanabha, one of the seven children, filed a statement under Section 6(1) of the Principal Act declaring the particulars of the joint family   property. Thereafter, the   Deputy Commissioner and Competent Authority, Mangalore Urban Agglomeration issued a draft statement under Section 8(1) of the Principal Act to the declarant, i.e., Padmanabha to surrender excess vacant land of 9,489.48 sq. mts. Padmanabha filed objections stating that the individual share of each of the children subsequent to the partition was within the ceiling limit prescribed under the Principal Act. The Competent Authority passed an order holding that the partition deed having been affected subsequent to the commencement of the Principal Act, the same could not be considered as per the Principal Act. Subsequently, the Competent Authority passed an   award   fixing   compensation   for   the   said excess land at Rs.15,630. The Appellant filed a petition under Urban Land Repeal Act, 1999 praying for his name to be restored in the RTC, inter alia on the grounds that the Competent Authority had not issued notice to the Appellant regarding taking of possession of the suit property. The Competent Authority had not taken physical possession of the suit property as on the date of commencement of the Repeal Act. Hence, as per the provisions of the Repeal Act, the proceedings would abate and the Competent Authority could not take further action under the Principal Act. The said petition was rejected by the Competent Authority. Thereafter, the Appellant approached the High Court by way of Writ Petition which was dismissed.  Aggrieved, the  Appellant  came  before  this Court. The honorable court observed, “The determination of ‘excess land’ is to be made considering the status of the land at the time of commencement of the Principal Act, and not at the time of filing of the declaration.   In  our considered opinion, since it is an admitted fact that the partition, if any, was only effected after the Principal Act’s commencement, the Division Bench was correct in holding that the partition deed would not affect the validity of the Competent Authority’s determination of excess land owned by the joint family at the time of commencement of the Act. Hence, to this limited extent, we concur with the findings of the Division Bench.”