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IN THE HIGH COURT OF KARNATAKADHARWAD BENCH

DATED THIS THE 19TH DAY OF AUGUST, 2014

PRESENT

THE HON’BLE MR.JUSTICE RAM MOHAN REDDY

AND

THE HON’BLE MR.JUSTICE B.MANOHAR

WRIT APPEAL NOs.30966-30967/2012 (ULC)

BETWEEN

VAIJAYANTI W/O PRABHAKAR PATILD/O, ARJUN YESHWANTKITTUR @ KITTURKAR,AGED 27 YEARS,OCC: HOUSEHOLD WORK,R/O BHAVANI NAGAR, MANDALI ROAD,BELGAUM-590 001,REPRESENTING THE ESTATE OFSRI YESHWANT KITTUR@ KITTURKAR BEINGGRAND DAUGHTER OFY.R.KITTUR. ... APPELLANT

(BY SRI. SHIVARAJ C BELLAKI, ADVOCATE)

AND

1. THE STATE OF KARNATAKA,REP. BY IT SECRETARY,URBAN DEVELOPMENT DEPARTMENT,M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI,BANGALORE.

®

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2. THE SPECIAL DEPUTY COMMISSIONER,URBAN LAND CEILING, BELGAUM REGION,BELGAUM-590 001. ... RESPONDENTS

(BY SRI. C.S PATIL, GOVERNMENT ADVOCATE)

THESE WRIT APPEALS ARE FILED U/S.4 AND R/W.

SEC.10(iv)(a) OF THE KARNATAKA HIGH COURT ACT, PRAYING TO,

CALL FOR THE RECORDS IN W.P.NO.67162 AND 67163 OF 2009

(ULC) AND ON PERUSAL OF THE SAME BE PLEASED TO SET

ASIDE THE JUDGMENT AND ORDER DATED:15/06/2012 AND

25/06/2012 PASSED BY THE LEARNED SINGLE JUDGE, AND TO

GRANT PRAYER AS PRAYED FOR IN THE WRIT PETITION.

THESE APPEALS COMING ON FOR DICTATING JUDGMENT

THIS DAY, RAM MOHAN REDDY.J., DELIVERED THE FOLLOWING:

JUDGMENT

These intra court appeals are filed by the

unsuccessful petitioner, calling in question the order

dated 15.6.2012 of the learned single Judge dismissing

WP Nos.67162 & 67163/2009.

2. Learned single Judge dismissed the petition on the

following two counts:

[a] petitions were filed eighteen years after the cause of

action arose, hence suffered from delay and latches;

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[b] lands in question after being held to be excess

vacant land under the Urban Land [Ceiling and

Regulations] Act, 1976, for short ‘ULCAR Act’, was

allotted to two beneficiaries after possession was

taken over from the petitioner.

3. Briefly stated facts are:

I. One Yeshwant Ram Kittur @ Kitturkar, grandfather

of the petitioners, a tenant of agricultural lands

measuring 2 acres 30 guntas in RS No.166 of

Belgaum Taluk, Belgaum District, on the coming

into force of Karnataka Land Reforms Act, 1961,

having made an application under section 48-A in

form No.7, was conferred with occupancy rights by

order dated 26.11.1976 of the Land Tribunal,

Belgaum, following which a certificate of registration

in form No.10 was issued on 28.2.1981.

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II. Petitioner’s father by name Arjun Yeshwanth Kittur

filed a declaration under section 6 of the ‘ULCAR Act’

which when enquired into, the competent authority

by order dated 19.6.1982 declared that the declarant

held excess vacant land of 9128.70 sq.meters in RS

No.166 of Belgaum.

III. The State Government asserted that though by

notice on 4.2.1983 the declarant was informed to

hand over possession of the excess vacant land

nevertheless remained absent, hence possession of

excess vacant land was taken on 26.2.1983, by

drawing a panchanama.

IV. It is the further case of the Government, that by

order dated 17.12.1984, a direction was issued to

the competent authority to allot the excess vacant

land to two beneficiaries for a specific purpose, to be

utilized within a period of one year, laced with a

condition that if it is not utilized within the period

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stipulated, the Government may resume the land.

6098.70 sq. meters of land from out of 9128.70 sq.

meters was allotted to the Divisional Engineer,

Telegraphs, Belgaum, for construction of office

building and the balance area of 3030 sq. meters

was allotted in favour of the Assistant General

Manager, Syndicate Bank, Belgaum, for construction

of an office building. The said two allottees did not

comply with the condition of erecting the buildings,

within the time prescribed. Having not utilized the

land for the specific purpose for which it was

allotted, although Syndicate Bank put up a

compound wall, notices of even date 16.1.2008 were

issued to the allottees to show cause as to why the

allotments should not be cancelled. Thereafterwards,

by order dated 17.9.2009, the State Government

cancelled the allotment and directed the allottees to

hand over possession of the said properties,

following which possession was taken.

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V. In the meanwhile appellant is stated to have made a

representation on 07.10.2008 to the State

Government to restore the excess land in her favour

on the ground that the allotment made in favour of

the aforesaid two allottees was cancelled and that no

compensation was paid to her under the ULCAR Act

nor was physical possession handed over to the

Deputy Commissioner while she continued to be in

possession of the excess vacant land. That

representation when rejected by order dated

17.09.2009 (Annexure-M) resulted in the writ

petition, which was dismissed by the order

impugned.

4. These appeals when heard on 11.08.2014 the

following order was passed.

“Sri.Ashok Haranahalli, leaned Senior

counsel for the appellant, submits:

(a) That the land measuring 9128

sq.mt. in R.S. No.166 of

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Belgaum Taluk is agricultural

land, even according to the

Deputy Commissioner, though

declared as excess vacant land

under Section 8 of the Urban

Land (Ceiling and Regulation)

Act, 1976 (for short ‘the

ULCAR Act ’ ), in the order

dated 19.06.1982, Annexure

‘E’. Learned Sr. counsel

places reliance upon the

decision of the Apex Court in

STATE OF GUJARAT AND

ANOTHER Vs.

MANOHARSINHJI

PRADYUMANSINHJI JADEJA,

(2013) 2 SCC 300, wherein at

paragraph No.90, it is held

thus:-

“90. Whatever stated in

Paragraph 28 in Valluri Basavaiah

case [Union of India v.Valluri

Basavaiah Chowdhary, (1979) 3

SCC 324] can only be understood

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to mean that when the State

Legislature authorizes the

Parliament to pass a legislation in

respect of the subject matter of

Schedule VII List II Entry 18, i.e.

“land” it would cover “land and

building” and would necessarily

include “vacant land” and would

take in land of every description

including “agricultural land” or

any other kind of land. It also

went on to hold that the

resolution passed by the State

Legislature cannot be said to

impose any restriction as it would

be contrary to the terms of Article

252 (1) of the Constitution. It was

further held that the Parliament

was empowered to enact the law

pursuant to the surrender of the

State to enact a law with said

subject by formulating its own

prescription as to the nature of

urban land in different stages.

Beyond that, we do not find any

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other statement of law

propounded in the said decision.

Applying the said legal principle, it

can only be held that the 1976 Act

in having imposed a restriction by

way of ceiling on urban land

within the urban agglomeration by

excluding agricultural land it was

a valid piece of legislation. In this

respect, the contention of Mr. Soli

J. Sorabji that the State

Legislature only intended in its

authorization to bring about a

legislation only on “urban

immovable land” and not on any

agricultural land is quite

appealing. We can also state that

in paragraph 32 of the said

decision, this Court consciously

decided not to dilate on the

question any further in that

judgment as it can be better dealt

with separately at a later point of

time. We now hold that the

situation has now come where the

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position has to be made loud and

clear to state that the 1976 Act

would govern only such of those

lands which would fall within its

area of operation within urban

agglomeration to the specific

exclusion of the agricultural lands

and consequently the continued

application of the unamended

1960 Act remain without any

restriction.”

(Emphasis supplied)

(b) That possession of the land

was not taken either

voluntarily or perforce since

notice issued under sub-

section (5) of Section 10 of the

ULCAR Act did not fructify

into a voluntary surrender and

there is no material

whatsoever to establish

forcible taking of possession

as required by sub-section (6)

of Section 10 of the ULCAR

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Act. Learned Sr. Counsel

placed reliance upon the

decision of the Apex Court in

GAJANAN KAMLYA PATIL Vs.

ADDL. COLLECTOR AND

COMPETENT AUTHORITY, D.D.

14.02.2014, Civil Appeal

No.2069/2014.

(c) That the order of the Deputy

Commissioner declaring excess

vacant land being without

inherent jurisdiction, since the

land is agricultural land, is

non est and could be

challenged at any point of

time, not attracting dismissal

on account of delay and

latches. Learned Sr. counsel

places reliance upon a

decision of a Co-ordinate

Division Bench in MALLAIAH

BASALINGAYYA HIREMATH Vs.

THE STATE OF KARNATAKA,

URBAN DEVELOPMENT

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DEPARTMENT AND ANOTHER,

ILR 2012 KAR 3298.

(d) That the State Government

though allotted land

measuring 6098.70 sq.mts. in

favour of Divisional Engineer,

Telegraphs, Belgaum and 3030

sq.mts. in favour of Assistant

General Manager, Syndicate

Bank, Belgaum, nevertheless,

was cancelled by order dated

17.09.2009, Annexure ‘L’,

since the land was not utilised

for the purpose for which it

was allotted within the time

stipulated.

(e) That the Government paid no

compensation for the said land

declared as excess vacant land

and that in the statement of

objections to Writ Petition

No.67162 of 2009 [ULC], it was

specifically averred that

distribution of compensation

not only in the case of

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appellant, but also in other

cases, was awaiting receipt of

compensation amount from the

Government and that the

Deputy Commissioner,

Belgaum, is making efforts to

secure a grant from the

Government to be distributed

as compensation, which would

be done only after the receipt

of grant.

(f) Lastly, that the Deputy

Commissioner did not notify in

the gazette the orders as

required by sub-section (1)

and sub-section (3) of Section

10 of the ULCAR Act. That the

appellant has been in

possession and enjoyment of

the lands in question by

cultivating paddy and

essentially the lands are

agricultural in character and

nature.

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2. Learned Government Advocate,

per contra, submits:

(a) That the notifications, under

sub-sections (1) and (3) of

Section 10 of the ULCAR Act,

since issued and duly

gazetted are available in the

records;

(b) That possession of the land

when not voluntarily

surrendered though notice

dated 26.02.1983 under sub-

section (5) of Section 10 of

the ULCAR Act was issued,

since possession was not

handed over voluntarily,

possession was taken under a

Mahazar of even date

26.02.1983.

(c) That the lands were allotted

to the Divisional Engineer of

Telegraph Authority and

Syndicate Bank, who took

possession of the said land,

pursuant to which the entries in

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the records of rights were

effected in the names of

allottees;

(d) That during the life time of

the declarant, who filed the

declaration under Section

6(1) of the ULCAR Act,

neither the order of the

Deputy Commissioner nor the

taking of possession was

challenged, but the daughter

of the declarant claims to be

in possession and enjoyment,

and that the Government was

not a party to the Civil suit

instituted arraigning the

Bank as a defendant.

3. Learned Government Advocate

seeks time to obtain the Gazette

Notifications and instructions over the

present status of the immoveable

property in question.

At request, list on 18.08.2014 for

further hearing.”

- - -

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5. Regard being had to the facts noticed supra more

appropriately that the land in question forming part of a

larger extent was classified as agricultural land put to use

for agricultural purposes as on 26.11.1976 the date of

order of the Land Tribunal conferring occupancy rights

and on 28.2.1981 when the Revenue Department issued

the certificate of registration as on occupant under the

Karnataka Land Reforms Act 1961, and the declaration

made by the appellant’s father invoking Section 6 of the

‘ULCAR Act’ in respect of agricultural land, the question

is:

‘Whether the competent Authority was

invested with a jurisdiction to declare the said

land as excess vacant land, though ULCAR Act

applies to such of those lands which fall within

the urban agglomeration to the specific

exclusion of the agricultural lands?

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6. The answer to the question need not detain the court

for long, in the light of the authoritative pronouncement of

the Apex Court in Manoharsinhji’s case, supra, that

the ULCAR Act was a valid piece of legislation

imposing restriction by way of ceiling on urban land

within the urban agglomeration by excluding agricultural

lands.

(emphasis supplied)

7. A co-ordinate Division Bench in Mallaiah’s case

supra, observed that “merely because the appellant

committed an error in filing a declaration declaring his

agricultural lands as urban lands, as it fell within the

urban agglomeration, the same cannot be adjudicated

mechanically since a duty is cast upon the competent

authority under the ULCAR Act to point out whether the

land declared by the applicant is urban land or not and

whether such a declaration can be adjudicated upon’; in

addition, it was observed thus:

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“If the authorities lacks inherent

jurisdiction from filing of declaration, the

competent authority is not invested with the

jurisdiction and the Government cannot

declare agricultural lands which are excluded

from the ULCAR Act as excess vacant land.”

8. In our opinion, that observation applies on all its

fours to the facts of this case. The competent authority

had no jurisdiction to declare agricultural land in question

as urban land or excess vacant land since it did not fall

within the said definition under Section 2(O) of the ULCAR

Act. The competent authority having not examined his

jurisdiction to entertain the declaration and pass orders

thereon, the order of the competent authority declaring

the land in question as excess vacant land suffers from

lack of jurisdiction, hence void ab initio.

9. In Mallaiah’s case, the co-ordinate Division Bench

further observed that the “learned Single Judge was not

justified in dismissing the writ petition on the ground of

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delay and latches more appropriately when the competent

authority had passed an order without jurisdiction. In the

facts of this case, though there is a delay of 18 years in

filing the writ petition calling in question the order of the

competent authority, nevertheless since the order is

without jurisdiction is non est hence the question of delay

and latches does not arise. In our opinion, the learned

Single Judge was not justified in dismissing the writ

petition on the ground of delay and latches.

10. Possession of the land was asserted to have been

taken over by the competent authority under ULCAR Act

by issuing notice under sub Section 5 of Section 10 to the

appellant’s father who acknowledged the same and having

not voluntarily handed over possession of the land, the

State asserts to have taken possession of the land by

drawing a mahazar.

11. It is no doubt true that sub Section 5 of Section 10

of the ‘ULCAR Act’ provides for notice to the

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declarant/occupier to voluntarily hand over possession of

the excess vacant land so declared while sub Section 6

provides for forcibly taking possession of the said land if

not voluntarily surrendered. The requirement of sub

Section 5 of Section 10 is, issue of a show cause notice to

hand over possession of the land within 30 days from the

date of receipt of notice failing which possession of the

land would be taken by application of necessary force. It

is a matter of fact that appellant’s father did not

voluntarily hand over possession and comply with the

notice under sub Section 5 of Section 10 of the ‘ULCAR

Act’. Sub-Section 6 of Section 10 speaks of “possession”

which says that, “if any person refuses or fails to comply

with an order under sub Section 5, the competent

authority may take possession of the vacant land to be

given to the concerned State Government or any person

duly authorized by the State in that behalf and may for

the purpose of using such force as may be necessary”.

Forcible dispossession of the land therefore, can be

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resorted to only in a situation which falls under sub

Section 6 and not under sub Section 5 of Section 10.

12. Sub Sections 5 and 6, therefore, take care of both

the situation, i.e., taking possession by giving notice, i.e.,

peaceful dispossession/voluntarily dispossession and on

failure to surrender or give delivery of possession, then

forcible dispossession under sub Section 6. The

requirement of notice under sub Section 5 and 6 are

mandatory for the purposes of taking possession, and

deploying the word “may” in both the sub Sections it is to

be understood as “shall” since the authority is charged

with the task of enforcing the statute.

13. For taking forcible possession certain proceedings

have to be followed. It is not the case of the State

Government or its authorities that such procedures were

followed except stating that possession was taken by

drawing a panchanama. In the absence of relevant

material constituting substantial legal evidence of the fact

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of either peaceful voluntary possession having been

delivered or forceful dispossession, it cannot be said that

possession of the excess vacant land was in fact taken by

the State Government on 26.02.1983, without complying

with Sub Sec.(6) of Sec.10 of ULCAR Act. This is precisely

the law laid down by the Apex Court in Gajanan’s case,

supra.

14. Although the learned Government Advocate sought

time to place before the Court the gazatte notifications

issued under sub Sections 1 and 3 of Section 10, it is

submitted today that the competent authority issued

necessary directions to the Government Press at Dharwad

to have the same published, but is unable to secure and

place before Court the said gazette publications. In the

absence of the notifications under sub Section 1 and sub

Section 3 of the ‘ULCAR Act’ duly gazetted, it cannot be

said that the land measuring 9128 sq.mt. in R.S. No. 166

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of Belgaum taluk was vested in the State Government free

from all encumbrances. If that is so, then the question is,

“Whether the urban land (Ceiling &

Regulation) Act, Repeal Act, 1999, for short

‘Repeal Act’ with effect from 8.7.1999, would

apply to declare as abated the proceeding

relating to the declaration filed by the

appellant’s father?”

15. Clause-(a) of sub Section 1 of Section 3 of the Repeal

Act states that, the repeal of the principal Act shall not

affect vesting of any vacant land under sub Section 3 of

Section 10, possession of which is not taken over by the

State or any person duly authorised by the State

Government in that behalf or by the competent authority.

While Clause-(a) of sub Section 2 of Section 3 states that

where any land is deemed to have vested in the State

Government under sub Section 3 of sub Section 10 of the

Principal Act, possession of which is not taken over by the

State or any person duly authorised by the State

Government in that behalf or by the competent authority

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and any amount spent/paid by the State Government with

respect to such land, then such land shall not be restored

unless amount paid if any has been refunded to the State

Government. Section 4 of the Repeal Act states that all

proceedings relating to any order made or purported to be

made under the Principal Act pending immediately before

the commencement of the Repeal Act, before any Court,

tribunal or other authority shall abate, while the proviso

saves proceedings as are relatable to the land, possession

of which has been taken over by the State Government or

Competent Authority.

16. In the instant case, having concluded that there is

no vesting of the excess vacant land in question in the

State, under sub Section 3 of Section 10 of the ‘ULCAR

Act’ nor forcibly taking possession of the vacant land

under sub Section 6 of Section 10 of the ‘ULCAR Act’ and

applying Clause-(a) of sub-Section 2 of Section 3 of the

Repeal Act, the proceedings pursuant to the declaration

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filed by the appellant’s father in respect of the land in

question stands abated under Section 4 of the Repeal Act.

17. Admittedly neither the appellant’s father nor the

appellant was paid compensation pursuant to the

declaration of excess vacant land in view of the averments

in the statement of objections filed in the writ petition that

distribution of compensation, not only in the case of

appellant, but others, could not be done since awaiting

from the Government receipt of amount to be paid as

compensation, and that the competent authority was

making efforts to secure grants from the Government for

that purpose.

18. The fact that the State Government by order dated

17.09.2009 (Annexure-L) cancelled the allotments of the

lands made in favour of the Divisional Engineer

(Telegraph), Belgaum and the Assistant General Manager,

Syndicate Bank, Belgaum, for non-compliance with the

condition to utilize the land for the purpose for which it

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was granted within the time frame, prescribed, which

order is final and binding since not questioned, on that

score too, the learned Single Judge was not justified in

dismissing the writ petition.

19. In the result, these appeals are allowed in part. The

order dated 16.06.2012 of the learned Single is set aside.

W.P. Nos.67162-67173/2009 are allowed in part:

(a) All proceedings pursuant to the declaration

filed by the appellant’s father under ULCAR Act

and orders passed thereon stands abated in

view of the Repeal Act;

(b) Appellant to have her grievance redressed in an

appropriate forum, if dispossessed from the

land.

SD/- JUDGE

SD/- JUDGE

AN/BVV