AI Structured Summary
Not yet generated for this judgment
Judgment
K.L. Manjunath, J.—Heard the counsel for the parties.
The petitioners who are the permanent residents of Deputy Channabasappa Nagar of Dharwad City have presented this petition for their benefit and also for the benefit of other residents of the area to issue a writ of mandamus directing the respondents to complete the acquisition proceedings by taking possession of the land from the contesting respondent and to form a link road from Old Post Office Tavaragere Nursing Home to Pune - Bangalore National Highway which joins at Naik and Company as a public interest litigation.
The relief sought in the writ petition are as hereunder:
Direct the respondents No. 1 and 2 to take possession of the sites bearing CTS Nos. 33/1A/1A/1b and 33/1A/1A/1A.2 of Dharwad City from respondent No. 5 and further from the link road from Old Post Office Tavarageri Nursing Home to Pune Bangalore National Highway No. 4 by issuing a writ of mandamus or any other writ or order or direction;
Direct the respondent No. 1 to take action against the respondent No. 5 as per the provisions of Municipal Corporation Act for causing nuisance and damaging the property of the petitioner and surrounding residents by blocking the road and raising the level of road, by issuing a writ of mandamus or any other writ or order or direction;
Direct the respondent No. 1 to replace the old drainage pipes with large new pipes by issuing a writ of mandamus or any other writ or order;
Direct the respondent No. 4 to stop the Saw Mill run by the respondent No. 5 on CTS Nos. 33/1A/1A/1b and 33/1A/1A/1A.2 of Dharwad City by issuing a writ of mandamus or any other writ or order.
According to the petitioners, under a preliminary notification dated 26.10.1979 the lands of the contesting respondents were notified for acquisition for the formation of a link road from Old Post Office Tavaragere Nursing Home to Pune-Bangalore National Highway and a final notification under Section 6(1) of the Act came to be issue don 18.8.1991. Thereafter, on 20.12.2000 the 1st respondent - Municipality passed a resolution stating that there is no need to form the road. The said decision came to be approved by the City Improvement Department. Accordingly, it was recommended to denotify the land acquired by invoking the provisions of Section 48(1) of the Land Acquisition Act. Pursuant to the resolution proposals was approved by the City Improvement Department and the State of Karnataka by its order dated 6.4.2002 issued a notification under Section 48(1) of the Land Acquisition Act deleting the land in question which was sought to be acquired for the formation of a link road. Therefore, the writ petition came to be filed to direct the respondents to quash the notification issued under Section 48(1) of the Land Acquisition Act and to take possession of the property from 5th respondent and also to form a road as per the earlier resolution of the 1st respondent. On an earlier occasion, the writ petition filed by the petitioners came to be dismissed by a Coordinate Bench of this Court on the ground that the disputed questions of fact cannot be gone into. Aggrieved by the same, the petitioners had taken up the matter to the Hon''ble Supreme Court in C.A. No. 6782/2005 which appeal came to be allowed by an order dated 11.11.2005 and the order passed by this Court on an earlier occasion came to be set-aside and the matter has been remitted to this Court for fresh consideration to decide whether the possession of the land in question was taken over by the Land Acquisition Officer in accordance with law and to consider the prayer of the petitioner. In this background the matter is being heard by this Court afresh.
According to the respondents there is no need to form a link road on account of formation of a highway and such a need is not in existence. It is also contended by the legal representatives of deceased 5th respondent that a sawmill is in existence right from the beginning and even today the saw mill is being run and possession of sawmill was not taken over by the acquiring authorities and in view of Sub-section (2) of Section 4 of the new Act (The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013), even if it is held that notification issued under Section 48(1) of the Land Acquisition is bad, acquisition proceedings are deemed to have been lapsed since possession of the land has not been taken.
Mr. K. Suman, learned counsel appearing for the 5th respondent submits that Hon''ble Supreme Court has remanded the matter to this Court to find out whether possession is taken over by the acquiring authorities in accordance with law or not. Relying upon several documents produced by him, he contends that in the property of the 5th respondent, a sawmill is having been run even prior to acquisition and the same continues to be with the legal representatives of 5th respondent. Therefore, he requests this Court to dismiss the petition holding that the acquisition proceedings are deemed to have been lapsed.
Mr. M.R. Naik, learned Sr. counsel appearing for respondent No. 11 submits that at no point of time, possession of land from the 11th respondent was taken over on the contrary this 11th respondent has constructed a commercial complex after obtaining licence and plan. According to him, the mahazar said to have been drawn is not in accordance with law but as on today also, no notification has been issued as required under Sub-section (2) of Section 16 of the Land Acquisition Act and he further submits that the mahazar has been drawn behind the back of 11th respondent and all panchas to the mahazar are none other than the petitioners. Therefore, he contends that the possession was never taken over by the respondent/acquiring body. He further submits that the possession is said to have been taken by the Assistant Director of Survey Settlement and Land Records. According to him, it is only the Land Acquisition Officer can take possession in accordance with law. Therefore, he contends viewed from any angle, the petition filed by the petitioners is not maintainable since possession of the land is still with the 11th respondent and others also. In the circumstances, he requests this Court to dismiss the petition.
Mr. A.G. Shivanna, Addl. Adv. General submits that though mahazar is drawn by the Asst. Director of Survey Settlement and Land Records, the same has been done by him at the instance of the power delegated to him by the Land Acquisition Officer. Therefore, he submits in view of Section 16 of the Land Acquisition Act also the same has been issued on 9.11.2000. Therefore, he contends that the arguments advanced by the learned counsel appearing for 5th respondent and 11th respondent are required to be rejected.
After hearing learned counsel for the parties, the only point to be considered by this Court in this petition is, "Whether the acquisition proceedings initiated by respondents 1 to 3 is completed in accordance with the Land Acquisition Act and whether the relief sought by the petitioners can be granted to them in view of Sub-section 2 of Section 24 of the new Land Acquisition Act.
It is no-doubt true that pursuant to the resolution of the 1st respondent, the properties of respondents 5 to 13 were sought to be acquired by respondent No. 2 in order to form a link road from Old Post Office, Tavaragere Nursing Home to Poona-Bangalore National Highway. It is also not in dispute that the acquisition proceedings was initiated long back according to respondent Nos. 1 to 3 and the petitioners, possession is taken by them in accordance with law. But, the petitioner has filed the petition at the first instance to direct respondents 1 to 3 to take possession of the land from 5th respondent and to form a road. Therefore, it is clear that as on the date of filing the petition, possession was not taken over by the respondent. Then question is whether the possession is taken over by the respondent and whether the property notified for acquisition are really in possession of respondents 1 to 3 to enable them to form a road in terms of the earlier resolution.
According to the learned Addl Adv. General, possession of the land was taken over by drawing a mahazar. It is not in dispute that 5th respondent was running a sawmill. It is also not in dispute that as on today the machineries of the sawmill are in the premises only and old building is also in existence in the premises of the 5th respondent. Therefore, it is clear that possession still lies with 5th respondent except the mahazar said to have been drawn by the Asst. Director of Survey Settlement and Land Records. Merely because the mahazar is drawn, the Court cannot presume that possession is with the respondent, however, there could be a presumption that in view of the acquisition proceedings and issuance of notification under Section 16, the land is vested with the Government. But it is not the case of the Land Acquisition Officer that after taking actual possession of the sawmill from the 5th respondent, respondent No. 5 has trespassed into the premises and the sawmill has been re-erected by him. But there is nothing on record to show that the plant and machineries of the sawmill were removed by the Land Acquisition Officer in accordance with law except drawing a mahazar. As rightly pointed by the learned counsel for respondents 5 and 11, if mahazar is attested by the petitioners, we have to presume that since the petitioners are interested to from a road, such a mahazar has been drawn behind the back of the owners. The very fact that sawmill is in existence as on today, the physical possession remains with the 5th respondent. In view of Sub-section (2) of Section 24 of the new Act, all acquisition proceedings are deemed to have been lapsed.
Similarly, if the 11th respondent has constructed a commercial building, it is for the respondents to explain when and how 11th respondent has constructed the multistoreyed building. The existence of multistoreyed building is not in dispute. Therefore, we are of the view that possession lies with respondents 5 and 11 and when the possession lies with respondents 5 and 11, the acquisition proceedings are deemed to have been lapsed. Therefore, there is no necessary for us to give a finding on question of power of the Government to issue a notification under Section 48(1) of the Land Acquisition Act. Even, if we hold that the acquisition proceedings are lapsed, it is for the authority/respondents 1 to 3 to consider whether there is really a need for the formation of a road or not. If the 1st respondent is of the opinion that there is a need for formation of road for the benefit of the petitioners or other respondents, it is for the respondents to initiate acquisition proceedings afresh in accordance with law.
With the above observations, the writ petition is dismissed.