Karnataka High Court
Hanumanthappa S/O Ningappa Talawar … vs The State Of Karnataka on 27 September, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
BEFORE R
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 101473 OF 2023 (GM-SLUM)
C/W
WRIT PETITION NO. 104671 OF 2023 (GM-SLUM)
IN WP NO.101473 OF 2023:
BETWEEN
NINGAPPA S/O. MALLAPPA WALIKAR @ TALWAR,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O. AYODHYA NAGAR, OLD HUBLI,
TQ: HUBBALLI, DIST: DHARWAD-580024.
...PETITIONER
(BY SRI. SANTOSH B. MALLIGAWAD, ADVOCATE)
AND
1. THE STATE OF KARNATAKA,
R/BY ITS PRINCIPAL UNDER SECRETARY-2 ,
DEPT. OF HOUSING, M.S. BUILDING,
GIRIJA A DR. AMBEDKAR VEEDHI, BENGALURU-01.
BYAHATTI
Location: HIGH
COURT OF
2. THE COMMISSIONER KARNATAKA
KARANTAKA
DHARWAD SLUM CLEARANCE BOARD,
BENCH
NO.55, ABHAYA COMPLEX,
3RD FLOOR, RISALDAR STREET,
SHESHADRIPURAM, BENGALURU-560020.
3. THE ASSISTANT EXECUTIVE ENGINEER,
KARNATAKA SLUM CLEARANCE BOARD,
1ST SUB-DIVISION, (TOL-NAKA),
JANNAT NAGAR, DHARWAD-04.
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4. THE DEPUTY COMMISSIONER,
OFFICE OF DEPUTY COMMISSIONER,
DHARWAD -01.
...RESPONDENTS
(BY SRI. KESHAVAREDDY, AAG ALONG WITH
SRI. PRAVEEN K. UPPAR, AGA, FOR R1 & R4;
SRI. RAVIRAJ C. PATIL, ADV. FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE NOTIFICATION BEARING
NO. VAE/113/SBM2020, BENGALURU LAND AND SY.NO.37/2B DATED
11/04/2022 ISSUED BY RESPONDENT NO.1 IN SO FOR AS
PETITIONER IS CONCERNED VIDE ANNEXURE-K; ISSUE A WRIT IN
THE NATURE OF MANDAMUS DIRECTING THE RESPONDENTS TO
TAKE FURTHER STEPS PURSUANT TO THE NOTIFICATION DATE
16/11/2018 BEARING NO. VAE-134-KOMAME-2018 PASSED BY
RESPONDENT NO.1 VIDE ANNEXURE-F.
IN WP NO.104671 OF 2023:
BETWEEN
HANUMANTHAPPA
S/O. NINGAPPA TALAWAR @ WALIKAR,
SINCE DECEASED BY HIS LRS
1. CHANNABASAVVA
W/O. HANAMANTHAPPA TALAWAR @ WALIKAR,
AGE: 75 YEARS, OCC: HOUSEHOLD,
R/O. BOMMAPUR, CHINDI ONI,
HUBBALLI TQ: HUBBALLI,
DIST: DHARWAD-580028.
2. YALLAMMA @ YALLAVVA
W/O. MARUTI BAIRAPPANAVAR,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O. BOMMAPUR, CHINDI ONI,
HUBBALLI TQ: HUBBALLI,
DIST: DHARWAD-580028.
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3. KASTURI @ KASTUREVVA
W/O. HANUMANTHAPPA MANNAGI,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O. BOMMAPUR, CHINDI ONI,
HUBBALLI TQ: HUBBALLI,
DIST: DHARWAD-580028.
4. FAKKIRAMMA @ LAXMI
W/O. MANJU @ MANJUNATH HEBSUR,
AGE: 46 YEARS, OCC: HOUSEHOLD,
R/O. BOMMAPUR, CHINDI ONI,
HUBBALLI TQ: HUBBALLI,
DIST: DHARWAD-580028.
5. ANNAPURNA
W/O. NINGAPPA TALAWAR @ WALIKAR,
AGE: 44 YEARS, OCC: HOUSEHOLD,
R/O. BOMMAPUR, CHINDI ONI,
HUBBALLI TQ: HUBBALLI,
DIST: DHARWAD-580028.
6. KUMAR S/O. NINGAPPA TALAWAR @ WALIKAR,
AGE: 32 YEARS, OCC: STUDENT,
R/O. BOMMAPUR, CHINDI ONI,
HUBBALLI TQ: HUBBALLI,
DIST: DHARWAD-580028.
7. RAVI S/O. NINGAPPA TALAWAR @ WALIKAR,
AGE: 28 YEARS, OCC: STUDENT,
R/O. BOMMAPUR, CHINDI ONI,
HUBBALLI TQ: HUBBALLI,
DIST: DHARWAD-580028.
THE PETITIONER NO.1 TO 4 AND 7
ARE REPRESENTED BY THEIR GPA HOLDER
PETITIONER NO.6 KUMAR
S/O NINGAPPA TALAWAR @ WALIKAR.
...PETITIONERS
(BY SRI. VIJAYENDRA BHIMAKKANAVAR, ADVOCATE)
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AND:
1. THE STATE OF KARNATAKA,
REPRESENTED BY
ITS SECRETARY/UNDER SECRETARY,
DEPARTMENT OF HOUSING SECRETARIAT,
GOVERNMENT OF KARNATAKA,
VIKAS SOUDHA, II FLOOR, BENGALURU-560001.
2. THE STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
BOARDS AND MUNICIPAL ADMINISTRATION,
VIKAS SOUDHA, BENGALURU-560001.
3. THE STATE OF KARNATAKA,
REPRESENTED BY ITS ADDL. CHIEF SECRETARY,
DEPARTMENT OF FINANCE,
BOARDS AND MUNICIPAL ADMINISTRATION,
VIKAS SOUDHA, BENGALURU-560001.
4. THE KARNATAKA SLUM DEVELOPMENT
(CLEARANCE) BOARD,
REPRESENTED BY ITS COMMISSIONER,
NO.55, ABHAYA COMPLEX, 3RD FLOOR,
RISALADAR COMPLEX, SHESHADRIPURAM,
BENGALURU-560020.
5. THE DEPUTY COMMISSIONER,
DHARWAD, DIST: DHARWAD-580001.
6. THE ASSISTANT COMMISSIONER,
SUB-DIVISION, DHARWAD,
DIST: DHARWAD-580001.
7. HUBBALLI-DHARWAD MUNICIPAL CORPORATION (HDMC),
REPRESENTED BY
ITS MUNICIPAL COMMISSIONER,
LAMINGTON ROAD, HUBBALLI-580020.
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8. THE EXECUTIVE ENGINEER
THE KARNATAKA SLUM DEVELOPMENT (CLEARANCE) BOARD,
1ST SUB-DIVISION, TOLL NAKA, DHARWAD,
DIST: DHARWAD-580004.
...RESPONDENTS
(BY SRI. KESHAVAREDDY, AAG ALONG WITH
SRI. PRAVEEN K. UPPAR, AGA, FOR R1, R2, R3, R5 & R6;
SRI. RAVIRAJ C. PATIL, ADV. FOR R4 & R8;
SRI. C.S. PATIL, ADV. FOR R7)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE
NATURE OF CERTIORARI BY QUASHING THE IMPUGNED
NOTIFICATION BEARING NO.VAE113 SBM 2020, BENGALURU, DTD.
11-04-2022 VIDE ANNEXURE-L ISSUED/PASSED BY THE
RESPONDENT NO.1, IN THE INTEREST OF JUSTICE AND EQUITY;
ISSUE WRIT IN THE NATURE OF CERTIORARI BY QUASHING THE
IMPUGNED REPORT BEARING NO.ASHRAYA/VEVA-03/2021-22, DTD.
23-03-2022 VIDE ANNEXURE-H SUBMITTED BY THE RESPONDENT
NO.6, IN THE INTEREST OF JUSTICE AND EQUITY; ISSUE WRIT IN
THE NATURE OF CERTIORARI BY QUASHING THE IMPUGNED REPORT
BEARING NO.RP-2/2020, DTD. 25-03-2022 VIDE ANNEXURE-J
SUBMITTED BY THE RESPONDENT NO.5, IN THE INTEREST OF
JUSTICE AND EQUITY; ISSUE WRIT IN THE NATURE OF MANDAMUS
AND ISSUE APPROPRIATE DIRECTIONS TO THE RESPONDENTS
NO.1,3 TO 7 TO QUANTIFY AND PAY COMPENSATION UNDER
SECTION 20 OF THE SLUM ACT IN RESPECT OF 06 ACRES 18
GUNTAS 15 ANNAS IN SY.NO.37/3A OF NEKAR NAGAR, AYODHYA
VILLAGE (V) AT THE EARLIEST, IN THE INTEREST OF JUSTICE AND
EQUITY; ALTERNATIVELY, DIRECT THE RESPONDENTS NO.1,3 TO 7
TO PAY DAMAGES AND RELOCATE ALL THE SLUM DWELLERS FROM
06 ACRES 18 GUNTAS 15 ANNAS IN SY.NO.37/3A OF NEKAR NAGAR,
AYODHYA VILLAGE (V) TO ANY OTHER GOVERNMENT LAND AND
FURTHER DIRECT THE RESPONDENTS TO CLEAR ALL THE
STRUCTURES OR BUILDINGS MADE BY THEM AND HAND OVER
VACANT POSSESSION OF THE AFORESAID LAND TO THE
PETITIONERS, IN THE INTEREST OF JUSTICE AND EQUITY.
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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 19.09.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CAV ORDER
(PER: HON'BLE MR. JUSTICE H.P. SANDESH)
1. Heard the petitioners' counsel and also the learned
AAG appearing for the respondents.
2. The prayer sought in Writ Petition No.101473/2023 is
to issue it in the nature of certiorari quashing the
notification bearing No.VaE/113/SBM2020 Bengaluru
dated 11.04.2022 issued by respondent No.1 insofar
as the petitioner is concerned in respect of the land
bearing Survey No.37/2 vide Annexure-K and also
issue a writ in the nature of mandamus directing the
respondents to take further steps pursuant to the
notification dated 16.11.2018 bearing No.VaE-134-
KoME-2018 passed by respondent No.1 vide
Annexure-E and grant such other reliefs as deems fit
in the circumstances of the case.
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3. The petitioners in writ petition No.104671/2023
prayed this Court to quash the impugned notification
bearing No. VaE113 SBM 2020, Bengaluru, date
11.04.2022 vide Annexure-L issued by respondent
No.1; to issue writ in the nature of certiorari by
quashing the impugned report bearing
No.Ashraya/VeVa-03/2021-22, dated 23.03.2022
vide Annexure-H submitted by the respondent No.6
Assistant Commissioner; to issue writ in the nature
of certiorari by quashing the impugned report
bearing No.RP-2/2020, dated 25.03.2022 vide
Annexure-J submitted by the respondent No.5
Deputy Commissioner of Dharwad; so also sought
for writ of mandamus to issue appropriate directions
to respondents No.1, 3 to 7 to quantify and pay
compensation under Section 20 of the Slum Act in
respect of 06 acres 18 guntas 15 annas in
Sy.No.37/3A of Nekar Nagar, Ayodhya village (V) at
the earliest; and alternatively to direct the
respondents No.1, 3 to 7 to pay damages and
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relocate all the slum dwellers from 06 acres 18
guntas 15 annas in Sy.No.37/3A of Nekar Nagar,
Ayodhya village (V) to any the Government land and
further direct the Respondents to clear all the
structures or buildings made by them and hand over
vacant possession of the aforesaid land to the
petitioners and grant such other relief as deems fit in
the circumstances of the case.
4. The factual Matrix of the case in
W.P.No.101473/2023 is that, respondent No.2 herein
issued a notification under Section 3 of the
Karnataka Slum Areas (Improvement and Clearance)
Act, 1956 ('the Slum Act', for short) notifying the
land belonging to the petitioner bearing
R.S.No.37/2B measuring 1 Acre 26 Guntas. The said
notification was issued without even hearing the
petitioners. Thereafter, respondent No.1 issued
allotment letter and possession certificate to about
457 families. The said allotees have put up
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construction and residing in the said land since last
20 years. The notification is produced as Annexure-
A. It is also the case of the petitioner that, they
submitted a representation to the respondents
seeking compensation for the notified land as per the
provisions of Slum Act even in 2015-16, but no
action was taken and list of the persons/allottees is
produced as Annexure-B. It is also contended that,
as against the inaction on the part of the
respondents, petitioners preferred the Writ Petition
bearing W.P.No.103081/2016 seeking writ of
mandamus to consider the representation for
payment of compensation. The said writ petition
came to be allowed with a direction to consider the
representation for payment of compensation as per
Annexure-C. Pursuant to the directions of this Court,
respondent No.2 issued preliminary notification for
acquisition of subject lands. Thereafter, respondents
No.2 and 3 issued several recommendations to the
respondent No.1 seeking issuance of final notification
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and payment of compensation on 16.11.2018.
Respondent No.2 de-notified the entire acquisition
proceedings with a view to evade payment of
compensation to the land losers on 11.04.2022 and
the same is produced as Annexure-K. It is also the
contention that respondent No.2 also recommended
not to de-notifying the same and there is no such
provision under the Slum Act and if the same is de-
notified, the persons who are in possession going to
lose their right and Annexure-J is also produced
before the Court and even petitioner also relied upon
the copy of the minute of the deliberations as per
Annexure-H. The copy of the Preliminary Notification
dated 16.11.2018 s also produced as per Annexure-F
and also produced copy of the order passed in CCC
No.100054/2018 dated 14.11.2018 as per Annexure-
E.
5. The counsel appearing for the petitioner in
W.P.No.101473/2023 contended that;
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5.1. The notification is erroneous and invoked the
writ jurisdiction and the same is passed without
hearing the petitioner. The impugned action of
the respondents is highly arbitrary illegal
perverse and the same is made with malafides.
5.2. That the impugned action of the respondents is
violative of Article 300-A of the Constitution of
India inasmuch as petitioner is deprived of the
land and compensation for subject land. The
petitioners/land loser has not received even a
penny from the respondents since 30 years of
acquisition. The respondents have notified the
subject land in the year 1992 and taken
possession from the petitioners. Thereafter, the
said land has been allotted to around 457
families by issuing possession certificates. The
said families are constructed homes and
residing in the subject land since more than 20
years. The respondents have been collecting
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municipal tax, road tax and other statutory
taxes from the residents.
5.3. It is also contended that, once the notification
was issued under Section 17 of the Slum Act,
ought to have finalized determining the
compensation. When the Court also directed to
pay compensation and initiate appropriate
proceedings and also when they did not comply
with the same, the contempt proceedings was
initiated. It is also contended that, once the
land was acquired and possession was taken,
the respondents cannot de-notify the same and
under the Act there is no such provision and
hence this Court has to exercise the writ
jurisdiction.
5.4. The counsel in support of his arguments relied
upon some of the documents produced along
with the memo, particularly the possession
certificate issued by the respondent Slum Board
with respect to sites in petitioner's property and
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contended that, while issuing the possession
certificate, even mentioned the notification
dated 20.06.1992 even including the
measurement and in terms of the Government
Order No.YE/102/SBM2002 dated 18.10.2004
they have been in possession.
5.5. The counsel also in support of his arguments
relied upon the judgment of the Hon'ble Apex
Court reported in the case of Satetendra
Parasad Jain Vs. State of UP and Others
reported in (1993) 4 SCC 369 and referring to
this judgment would contend that, the Hon'ble
Apex Court discussed Sections 48, 17(1) and
(3-A) and 11-A of the Land Acquisition Act,
1894 and held that, once possession is taken
under Section 17(1), the Government cannot
withdraw from acquisition under Section 48.
The counsel brought to the notice of this Court
the discussion made in paragraph No.14 and
contend that, in the judgment in Rajasthan
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Housing Board vs. Shri Kishan, it was held that
Government could not withdraw from
acquisition under Section 48 once it had taken
possession of the land and also relied upon the
judgment in the case of Lt.Governor of H.P. Vs.
Avinash Sharma reported in (1970) 2 SCC 149
and extracted paragraph No.8 with regard to
invoking of General Clauses Act cannot pass
such notification.
5.6. The counsel also relied upon the judgment in
the case of Sanjeevnagar Health and
Medical Employees Association Vs. Mohd.
Abdul Wahab reported in (1996) 3 SCC 600
and brought to the notice of this Court
paragraph No.12, wherein also it is held that,
only Section 48(1) gives power to withdraw
from acquisition, that too when possession is
taken. The counsel referring to this judgment
would vehemently contend that, the
respondents once they have declared the said
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property as slum property invoking Section 3
and subsequently a notification was issued
under Section 14, they cannot withdraw the
same and possession has been taken and put
them in possession referring the Government
notification and now they cannot contend that
they have not taken any possession and no
power is vested with the respondents to de-
notify the same and hence this Court has to
grant the relief as sought.
6. Per contra, learned AAG appearing for the
respondent State brought to the notice of this Court
Annexure-K passed by the respondent Government
de-notifying the same since the preliminary
notification dated 16.11.2018 vide Annexure-F is
withdrawn. The counsel also vehemently contend
that, no dispute that earlier they have filed writ
petition and direction was given and prior to that
notification was issued in the year 1992. The
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counsel also vehemently contend that the Assistant
Commissioner has given the report that, even prior
to declaring the same as slum property, they have
sold the property by executing the sale agreement
and power of attorney and the Assistant
Commissioner has conducted detailed enquiry and
submitted report on 23.03.2024 to the Deputy
Commissioner, Dharwad and report is produced as
Annexure-R1. According to the said report, the
owners of the said land have executed sale
agreement in favour of the Hubballi sightless
Labourers Association represented by its Secretary
on 18.03.1985. The same was duly registered before
the concerned Sub-Registrar Office on 19.03.1985.
In furtherance of the said sale agreement a General
Power of Attorney came to be executed by the
owners of the land on 16.04.1985. The same is also
registered on the said date by the concerned Sub-
Registrar Office. The copies of the agreement of sale
and General Power of Attorney are produced as
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Annexures-R2 and R3. It is also contended that, the
said Association has formed a layout in the said land
and allotted a plot to each labours and they handed
over the possession under the document styled as
"Plot Thaba Patra" and the same is produced as
Annexure-R4 series. The counsel also would contend
that, in view of the above background, the
Government has rightly taken decision to drop the
acquisition proceedings. The declaration of the said
land as slum area does not amount to acquisition of
the said land. The area coming under the said land
was already in the occupation of many families who
have constructed their houses in the said area.
Since the said residential area was not having basic
amenities like proper road, electricity, drinking water
and drainage facilities, the area was declared as slum
in order to develop the area by providing basic
necessities and infrastructure. Hence the petitioner
knowing fully well that he is not the owner of the
land, but taking the shelter under notification
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declaring the area coming under the said land as
slum area is trying to mislead the Court by filing the
writ petition and hence he is not entitled for any
relief.
7. Respondents No.2 and 3 have also filed statement of
objections and they also relied upon the earlier
preliminary notification and also subsequent
notification and contend that these respondents are
in no way responsible for the development of the
slum in the said land and due to negligence of the
petitioner, purchasers/land owners slum was
developed in the said land and respondent No.4 only
after satisfying with the ingredients of Section 3 of
the Slum Act, has declared the said land as slum. It
was brought to the notice of respondent No.1 about
the illegal and unauthorised execution of bonds by
appointing their person by the petitioner after the
notification of de-notifying the land. Respondent
No.1 has de-notified the said land after considering
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the fact relating to the said land in detail and
financial burden to the Government and other
grounds which have been urged in the petition
cannot be considered. It is also contended that, the
families were already living/settled on the said land
since many years in the slum which developed in the
land. The counsel appearing for the Slum Board
also vehemently contend that, by issuing possession
certificate only recognized their possession and
notification was issued by the Government under
Section 3 of the Karnataka Slum Areas
(Improvement and Clearance) Act, 1973. The
counsel also vehemently contend that the appeal lies
under Section 59 of the Act and they cannot invoke
writ jurisdiction.
8. The counsel appearing for the State also vehemently
contend that in the possession certificates issued by
the Association, survey numbers are also mentioned
and now they cannot contend that the survey
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numbers are not mentioned and Section 3 is only
invoked for improvement. It is also contended that
Section 21 of General Clauses Act used for
withdrawal. The counsel would contend that, the
judgments relied upon by the petitioner not
applicable and Section 48 can be invoked only after
possession is taken by the Government and no such
possession has been taken.
9. In W.P.No.104671/2023 similar facts have been
urged and relied upon the notification dated
20.05.1992 as Annexure-A, Annexures B and B1 are
MR numbers, representation given by the petitioners
as Annexure-C, so also the order passed by this
Court in W.P.No.102553/2017 is relied upon and the
same is at Annexure-D. It is also contended that,
subsequent to the order, Government also issued
notification under Section 17 of the Act as per
Annexure-E dated 16.11.2018. The recommendation
dated 11.09.2019 is produced as Annexure-E1 and
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so also copy of the order dated 01.09.2021 passed in
W.P.No.145811/2020 as per Annexure-F, copy of the
minutes of deliberations of the Housing Department
as Annexure-G, copy of the impugned report dated
25.03.2023 by the Deputy Commissioner at
Annexure-J, copy of the memo dated 19.04.2024 at
Annexure-K, copy of the impugned notification dated
11.04.2022 issued by respondent No.1 at Annexure-
L, copy of the application dated 06.07.2022 for
production of document along with documents in CCC
No.100064/2022 as Annexure-M, copy of the counter
affidavit dated 12.08.2022 filed by respondent No.1
in contempt petition as Annexure-N, copy of the
counter affidavit dated 09.09.2022 filed by the
petitioners in contempt proceedings along with
documents at Annexure-P, copy of the order dated
12.09.2022 passed in contempt petition as per
Annexure-Q, copy of the communication dated
12.04.2002 by respondent No.4 to respondent No.1
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as per Annexure-R, copy of RTI replies dated
13.06.2022 and 11.01.2023 at Annexures T and T1.
10. W.P.No.104671/2023 is in respect of the area of 06
acres 18 guntas 15 annas in Sy.No.37/3A, declaring
the same as slum area in the year 1992. The counsel
for the petitioners in this petition would vehemently
contend that, Annexure-L withdrawing the
notification issued under Section 17 of the Act and so
also the preliminary notification and withdrawing of
the same is also without notice to the petitioners and
hence the writ jurisdiction is invoked. The action of
the respondents in unilaterally basing on the reports
is without jurisdiction and no such provision is
available in the Act to de-notify the same. There is
no dispute about the fact that the land was declared
as slum area in the year 1992 and also subsequently
writ petitions are filed and directions were given and
preliminary notification was issued and subsequently
only with an intention to avoid payment of
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compensation created the report of the Assistant
Commissioner and Deputy Commissioner and based
on the same, de-notifying the same unilaterally
withdrawn as per Annexure-L without giving an
opportunity, that too after utilizing and changing the
nature of the land of the petitioners is violation of
Article 14 and Article 300A of the Constitution of
India and the same is liable to be quashed. It is also
contended that, the Slum Board every year receives
separate grant/fund under the State Budged under
separate allocation to carry out its objective as well it
receives fund from Central. The counsel would also
contend that, if they are not bound to pay
compensation, then it is their duty once they
declared the same as slum area and provide all
facilities alternatively direct respondents No.1, 3 to 7
to relocate the slum dwellers and handover the
vacant possession.
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11. Though not filed separate statement of objections in
this petition, very same arguments were also
canvassed by the learned AAG for the State as well
as the counsel for the Slum Board, contending that,
when sale agreement and Power of Attorney were
executed, they cannot file petition seeking for
compensation.
12. In support of his arguments, petitioners' counsel
relied upon the judgment of the Hon'ble Apex Court
in the case of K.T. Plantation Pvt. Ltd and others
Vs State of Karnataka and another reported in
AIR 2011 SC 3430 and brought to the notice of this
Court the principles laid down in the said judgment,
deprivation of property by State ought to be for
public purpose, right to claim compensation though
not expressly included can be read in Article 300A.
The counsel also brought to the notice paragraph 17
of the said judgment, wherein it is discussed with
regard to the public purpose and also in paragraph
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121 with regard to the payment of compensation.
The counsel also brought to the notice of this Court
paragraphs No.140 and 143, wherein discussion was
made with regard to the principle contains no explicit
substantive component like eminent domain but has
many shades and colours and so also violation of
principles of natural justice may undermine rule of
law so also at times arbitrariness, proportionality,
unreasonableness etc., but such violations may not
undermine rule of law so as to invalidate a statute.
Violation must be of such a serious nature which
undermines the very basic structure of our
Constitution and our democratic principles.
13. The counsel also relied the judgment of this Court in
the case of Smt.P.Nagarathana Vs. The
Commissioner Bangalore Development
Authority and others reported in ILR 2013 KAR
2657, wherein it is held that Section 48(1) was
enacted giving liberty to the Government to withdraw
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the land from acquisition, the possession of which
has not been taken. The counsel would contend
that, if the possession is taken, then cannot be de-
notified. The counsel brought to the notice of this
Court the discussion made in paragraphs No.21, 22
and 23 of the said judgment to contend that, once
the possession is taken by the State Government and
handed over the same to BDA for formulation of the
layout, the question of withdrawing the land from
acquisition under Section 48(1) does not arise.
14. The counsel also relies upon the judgment of the
Hon'ble Apex Court in the case of Special Land
Acquisition Officer Vs. Godrej and Boyce,
decided on 27.10.1987 with regard to Section 48 of
the Act and the same is also discussed in paragraph
No.5. So long as possession is not taken over, the
mere fact of a notification under Section 4 nor
declaration under Section 6 having been made does
not divest the owner of his rights in respect of the
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land or relieve him of the duty to take care of the
land and protect it against encroachments. However,
once possession is taken, the State Government
cannot withdraw from the acquisition at any stage
after taking the possession.
15. The counsel also relied upon the judgment of the
Hon'ble Apex Court in the case of The State of
Karnataka and another Vs. B.R Muralidhar
reported in (2022) 10 SCR 448 and brought to the
notice of the discussion made in paragraph No.7 and
so also in paragraph No.9 and contend that, in this
judgment also discussed the judgment of K. T.
Plantation Private Limited and so also the The Deputy
Commissioner and Collector, Kamrup & Ors. Vs.
Durganath Sarma reported in AIR 1968 SC 394,
wherein even extracted paragraph No.21 and
contend that under Section 20 of the Slum Areas Act
as unconstitutional. Further direction was given, it is
for the legislature to decide and prescribe the
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reasonable method of determining the market value
for the purpose of paying compensation to the land
losers.
16. The counsel also relied upon the judgment in the
case of Suraj Lamp and Industries Pvt.Ltd Vs.
State of Harayana and another reported in
(2012) 1 SCC 656, wherein also a discussion is
made with regard to the scope of sale agreement
and execution of Power of Attorney and its legality
and held that immovable property can be
transferred/conveyed only by deed of conveyance
(sale deed) duly stamped and registered as required
by law - Explaining the nature and scope of an
agreement for sale, power of attorney and living will,
held, GPA sales or Sale Agreement/GPA will transfers
neither convey any title nor do they amount to
transfer of, or create interest in, immovable property
except to the limited extent of Section 53-A.
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17. In reply arguments, learned AAG would vehemently
conte that, though there is no provision under the
Act for de-notification, de-notified the same invoking
General Clauses Act, particularly Section 21, Power
ot issue, to include power to add to, amend, vary or
rescind notifications, orders, rules or bye-laws, and
powers are exercised under the General Clauses Act.
Hence the contention of the petitioners that there is
no any provision under the Act to de-notify the same
cannot be accepted.
18. Having heard the petitioners' counsel and also the
learned AAG appearing for the State as well as
learned counsel for respondents No.2 and 3 and also
the principles laid down in the judgment referred
supra, this Court has to analyse the material
available on record as to whether this Court can
exercise writ jurisdiction to quash the notification
issued by the State in both the matters.
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19. It is not in dispute that the petitioners are owners of
the respective properties to the extent of 01 acre 26
guntas and also 06 acres 32 guntas in respect of
Survey No.37/2B and 37/3A and also not in dispute
that the said land was declared as slum area under
Section 3 of the Karnataka Slum Areas
(Development)Act, 1973, as per the notification
dated 20.05.1992. It is also not in dispute that the
petitioners in both these petitions have approached
this Court when the compensation was not paid and
direction was given in both the petitions to consider
the representation. It is also not in dispute that
preliminary notifications are issued subsequent to the
directions issued by this Court under Section 17 of
the Act dated 16.11.2018. It is also not in dispute
that in spite of preliminary notification was issued,
respondents have not taken any action to pay
compensation and hence contempt proceedings was
initiated wherein objections are filed and contempt
proceedings was dropped since the State has raised
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the disputed issues. It is also important to note that
respondent No.1 relied upon the report of the
Assistant Commissioner and Deputy Commissioner to
withdraw the earlier preliminary notification and the
same is challenged in both the writ petitions.
20. This Court would like to rely upon Section 3 of the
Karnataka Slum Areas (Development) Act, 1973,
which reads as follows:
3. Declaration of slum areas.- (1) Where the
Government is satisfied, that,-
(a) any area is or is likely to be a source of danger
to health, safety or convenience of the public of
that area or of its neighborhood, by reason of
the area being low-lying, insanitary, squalid,
over-crowded or otherwise; or
(b) the buildings in any area, used or intended to
be used for human habitation are,-
(i) in any respect, unfit for human habitation; or
(ii) by reason of dilapidation, overcrowding, faulty
arrangement or faulty arrangement of streets,
lack of ventilation, light or sanitation facilities,
or any combination of these factors,
detrimental to safety, health or morals,
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it may, by notification, declare such area to be a
slum area.
(2) In determining whether a building is unfit
for human habitation, for the purposes of this Act
regard shall be had to its condition in respect of the
following matters that is to say,-
(i) repair,
(ii) stability,
(iii) freedom from damp,
(iv) natural light and air,
(v) water-supply,
(vi) drainage and sanitary conveniences,
(vii) facilities for storage, preparation and
cooking of food and for the disposal
of waste water,
and the building shall be deemed to be unfit as
aforesaid, if it is so defective in one or more of the
said matters that it is not reasonably suitable for
occupation.
21. Having considered Section 3 of the Act, it is very
clear that notification was issued in the year 1992
declaring the area as slum area. It is also not in
dispute that preliminary notification was also issued
under Section 17 of the Act. This Court also would
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like to rely upon Section 17 of the Act. Sections 17
and 18 of the Act read as follows:
17. Power to acquire land.- Where the
Government is satisfied that, for the
purpose of executing any work of
improvement in relation to any slum area
or any building in such area or for the
purpose of re-developing any slum
clearance area, or for the purpose of
rehabilitating slum dwellers, it is
necessary to acquire any land within,
adjoining or surrounded, by any such
area, it may acquire the land by publishing
in the official Gazette, a notice to the
effect that it has been decided to acquire
the land in pursuance of this section:
Provided that before publishing such
notice, the Government shall call upon the
owner or any other person who, in the
opinion of the Government, may be
interested in such land, to show cause
why it should not be acquired; and after
considering the cause, if any, shown by
the owner or any other person interested
in the land, the Government may pass
such orders as it deems fit.
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18. Land acquired to vest in Government free
from all encumbrances.- When a notice
under section 17 is published in the official
Gazette, the land to which the said notice
relates shall, on and from the date on
which the notice is so published, vest
absolutely in the Government free from all
encumbrances.
22. Section 17 is very clear that, where the Government
is satisfied that, for the purpose of executing any
work of improvement in relation to any slum area or
any building in such area or for the purpose of re-
developing any slum clearance area, or for the
purpose of rehabilitating slum dwellers, it is
necessary to acquire any land within, adjoining or
surrounded, by any such area, it may acquire the
land by publishing in the official Gazette. It is also
important to note that in view of Section 17 the
same is acquired. Section 18 is also very clear,
when a notice under section 17 is published in the
official Gazette, the land to which the said notice
relates shall, on and from the date on which the
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notice is so published, vest absolutely in the
Government free from all encumbrances.
23. Having read provision under Section 18 of the Act, it
is very clear that the land vests with the State free
from all encumbrances. Now the question before this
Court is weather respondent No.1 can de-notify the
same as de-notified in the matters. The reasons
assigned for de-notifying is also that, even prior to
the notification, these petitioners have executed sale
agreement and General Power of Attorney and in the
first case they have relied upon the same as
Annexures R1 and R2 and in the second case also
relied upon documents, which have been filed by the
petitioners themselves. The main contention of the
petitioners that, once they have executed sale
agreement and General Power of Attorney, in terms
of the Power of Attorney and sale agreement, the
Association also delivered possession to some of the
persons.
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24. The petitioners' counsel relied upon the possession
certificates issued by the Slum Board and having
read the possession certificates, it is very clear that a
notification was issued in the year 1992 and
reference is also made in the possession certificates.
It is also important to note that, the Government
Notification No.YE/102/SBM2002 dated 18.10.2004 is
referred in the possession certificates and in terms of
the said notification they are in possession, and the
same has been confirmed by issuing possession
certificates. The contention of the respondent State
is that only confirmed the possession and given
possession, but having read the possession
certificates, it is clear that in terms of Government
Notification dated 18.10.2004, they have been in
possession and reference of earlier notification is also
made therein.
25. Regarding the contention of the respondent State
that de-notification is made exercising the power
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center Section 21 of the General Clauses Act, it is to
be noted that, the citation relied upon by the
petitioners' counsel in Satetendra Parasad Jain's
case (supra), it is very clear that, once the
possession taken under Section 17(1), the
Government cannot withdraw from acquisition under
Section 48. It is also important to note that, in
paragraph number 14 of the said judgment, the
Hon'ble Apex Court also discussed the judgment
Rajasthan Housing Board's case and held that the
Government could not withdraw the acquisition
under Section 48 once it had taken possession of the
land. The Hon'ble Apex Court also relied upon the
judgment in the case of Lt.Governor of H.P. V.
Avinash Sharma and extracted paragraph No.8 of
the said judgment, which reads as follows:
".........after possession has been taken pursuant to a
notification under Section 17 (1) the land is vested
in the Government, and the notification cannot be
cancelled under Section 21 of the General Clauses
Act, nor can the notification be withdrawn in
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exercise of the powers under Section 48 of the Land
Acquisition Act. Any other view would enable the
State Government to circumvent the specific
provision by relying upon a general power. When
possession of the land is taken under Section 17(1),
the land vests in the Government. There is no
provision by which land statutorily vested in the
Government reverts to the original owner by mere
cancellation of the notification."
26. Having read the discussion made above by The
Honorable Apex Court in the judgment referred
supra, it is very clear that, after possession has been
taken pursuant to a notification under Section 17(1)
the land is vested in the Government, and the
notification cannot be canceled under Section 21 of
the General Clauses Act, nor the notification can be
withdrawn in exercise of powers under Section 48 of
the Land Acquisition Act and hence contention of the
learned AAG cannot be accepted.
27. Hence the very contention of the State that they
invoked General Clauses Act and withdrew the same
cannot be accepted. It is rightly contented by the
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counsel appearing for the petitioners that there is no
any provision under the Act for de-notifying the
same, but the contention of the learned AAG that
General Clauses Act is invoked and the same is
withdrawn cannot be accepted.
28. The other contention of the respondents that
possession was not taken, having read series of
documents of issuance of possession, which I have
already referred above, it is very clear that, in view
of the Government Notification dated 18.10.2004,
possession was taken and confirmed the possession
by issuing possession certificate.
29. With regard to the contention of the respondent
State that, once they have executed sale agreement
and Power of Attorney, they cannot seek any
compensation, the counsel appearing for the
petitioners also relied upon the judgment of the
Hon'ble Apex Court in reported in (2012) 1 SCC
656 in the case of Suraj Lamp and Industries
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Pvt.Ltd Vs. State of Harayana and another,
wherein it is held that, execution of sale agreement
and Power of Attorney will not convey any right on
any person and the same can be conveyed only by
deed of conveyance i.e., sale deed, that too duly
stamped and registered as required by law. Even the
Hon'ble Apex Court explained the nature of
agreement of sale and Power of Attorney and held
GPA as well as agreement of sale neither convey any
title nor do they amount to transfer of, or create
interest in, immovable property except to the limited
extent of Section 53-A.
30. Having considered the principle laid down by the
Hon'ble Apex Court in the above judgment also, it is
clear that respondents have declared the land as
slum area having taken note of scope of Section 3(a)
of the Act and even it is for the purpose of
improvement. I have already pointed out that in the
possession certificates also the respondents have
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made a reference to the Government Notification
dated 18.10.2004 and declared that they are in
possession consequent upon the same and confirmed
the possession by issuing possession certificates and
now they cannot blow hot and cold contending that
possession has not been taken. Even if the sale
agreement/Power of Attorney does not convey any
right, in view of the respondent State relying upon
the possession certificates issued by the Association
and the same is not registered document and also
the other documents are also notary documents
which have been relied upon by the petitioners in the
second petition and the same also does not convey
any title. When such being the case, when the
petitioners are owners of the property and the same
has not been disputed and when there is no any legal
transfer before the Court, the very contention of the
State cannot be accepted. The other judgments
which have been relied upon by the petitioners'
counsel are very clear with regard to taking
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possession is concerned. Once the possession has
been taken, the same cannot be withdrawn. The
reason for withdrawing the same is also the report of
the Assistant Commissioner and unilaterally taken
the possession without affording any opportunity to
the petitioners. The fact that these petitioners have
approached this Court and this Court has given
Direction and subsequent to the direction they have
issued preliminary notification under Section 17 also
not in dispute. When the documents which have
been relied upon by the State does not convey any
title and even assuming that the sale agreement and
Power of Attorney are accepted, that will not create
any right. It is also important to note that,
petitioners' counsel also brought to the notice of this
Court that, even they have not paid compensation to
the agreement holder as well as for the Power of
Attorney holder. Hence there is force in the
contention of the petitioners that the sale agreement
and Power of Attorney, even if it is accepted that it
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does not convey any title and title vests with the
petitioners only. The petitioners have also produced
the documents before the Court and even agreement
holders and Power of Attorney holders have not
made any claim. When such being the case, the
petitioners, who are the owners of the land, are
entitled for compensation. Hence the very issuance
of notification is unlawful, that too without affording
any opportunity and only based on the report of the
Assistant Commissioner and Deputy Commissioner.
Hence both the petitions are liable to be allowed and
respondent No.1 is directed to pay compensation in
favour of the petitioners in accordance with law. The
other contention of the learned AAG that the appeal
lies under Section 59 of the Act and the said
contention also cannot be accepted for the reason
that there is no provision in the Act to de-notify and
withdraw the notification and hence Section 59 of the
Act cannot be invoked to file an appeal as contended.
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31. In view of the discussions made above, I pass the
following:
ORDER
i. Both the writ petitions are allowed.
ii. The notification bearing No.VaE/113/
SBM2020 Bengaluru dated 11.04.2022,
issued by respondent No.1, in both the
petitions are quashed.
iii. Consequently, the impugned report
bearing No.Ashraya/VeVa-03/2021-22,
dated 23.03.2022 vide Annexure-H
submitted by the respondent No.6
Assistant Commissioner and the
impugned report bearing No.RP-2/2020,
dated 25.03.2022 respondent No.5
Deputy Commissioner of Dharwad, are
quashed.
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iv. Writ of mandamus is issued to
respondents No.1, 3 to 7 to quantify and
pay compensation under Section 20 of the
Slum Act, in respect of lands in both
these petitions.
Sd/-
(H.P. SANDESH)
JUDGE
gab
ct-mck
List No.: 1 Sl No.: 99