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NON-REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.9934 of 2016 (Arising out of SLP (C) No.20826 of 2010)

HUBLI-DHARWAD URBAN DEVELOPMENT AUTHORITY  

  .... Appellant(s) Versus

SHEKHARGOWDA CHENNABASANNAGOWDA

PHAKIRGOWDAR (SINCE DECEASED) BY LR. & ANR.  

             …. Respondent(s)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.

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

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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

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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)

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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

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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

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in dispute.  

6. Mr.  Basavaprabhu  S.  Patil,  learned  Senior  Counsel

appearing for the Appellant submitted that the findings of

the High Court are contrary to the record.   He submitted

that the question of consideration of objections of the First

Respondent  did  not  arise  as  the  averments  in  the  Writ

Petition  are  to  the  effect  that  he  was  not  aware  of  the

acquisition proceedings till the middle of August, 2005 and

that he lost an opportunity of filing his objections.   He took

us through the minutes of the meeting of Hubli-Dharwad

Urban Development  Authority  dated 06.02.2002 in which

the  recommendation  for  acquisition  of  the  land  was

approved.  The total land under acquisition for development

of a housing scheme was shown as 54 acres and 39 guntas.

An  extent  of  2  acres  36  guntas  in  Survey  No.  311/A/1,

belonging to the First Respondent forms part of  54 acres

and 39 guntas.   It was stated in the said minutes that the

objections submitted by the land owners/interested persons

were  considered.   It  was  clearly  mentioned  in  the  said

minutes  that  the  objections  of  farmers  and  interested

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persons in respect of lands admeasuring 32 acres and 28

guntas were examined by a one man committee.  The First

Respondent’s land was not part in the said land of 32 acres

and 28 guntas. He also referred to the draft award dated

31.01.2005 in  which  the  names  of  13  persons  who filed

their  objections  were  mentioned.   The  name of  the  First

Respondent was not found therein.   

7. Mr. Patil  submitted that the authority considered all

the objections that were filed by the landholders.  The High

Court went wrong in holding that the objections filed by the

First  Respondent  were  not  considered.  It  was  also

submitted by Mr. Patil that the Mahazar that was produced

by the Appellant before the High Court clearly showed that

possession  was  taken.   He  also  submitted  that  the

Notification under Section 16(2) of the Land Acquisition Act,

1894 is conclusive proof of possession being taken by the

authority.   According to Mr. Patil, the judgment of the High

Court suffers from apparent errors and is liable to be set

aside.   

8. Mr.  Balaji  Srinivasan,  Advocate  appearing  for  First

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Respondent  submitted  that  the  High  Court  was  right  in

holding that the objections filed by the Respondent were not

considered by the authorities.  He also submitted that the

landowners  are  in  possession  of  the  land  even  now.

According to him, the High Court rightly refused to consider

the xerox copy of the Mahazar produced by the Appellant to

show that possession was taken.  He further submitted that

the scheme was not implemented in respect of the land in

dispute.   Pursuant to the liberty given by this Court, the

First Respondent filed his written submissions in which he

stated that there is a farm house along with a cattle shed on

the land.  A leave and licence agreement dated 16.12.2009

was  filed  along  with  written  submissions  to  show that  a

mobile tower is erected on the land. The Respondent further

stated in the said written submissions that the legal heirs of

the  original  Respondent  furnished  their  Statement  of

Objections  dated  29.08.2001  to  the  Counsel.   The  said

objections  did  not  receive  any  consideration  by  the

authorities.  The  Respondent  is  still  in  possession  of  the

land  which  is  not  integral  to  the  housing  scheme.  The

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Respondent submits that the judgment of the High Court be

upheld.   

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

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record  carefully.   The  minutes  of  the  meeting  of

Hubli-Dharwad  Urban  Development  Authority  held  on

06.02.2002  was  filed  as  Annexure  P-2  along  with  the

written  submissions  of  the  Appellant.   The

recommendations  of  the  Chairman of  the  Hubli-Dharwad

Urban  Development  Authority  for  acquisition  of  lands  of

Byridevana  Koppa  Village  were  discussed  in  the  said

meeting.  The First Respondent’s 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  the  Hubli-Dharwad  Urban  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/

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landowners  whose  lands  were  acquired  and  who  filed

objections  were  given.   The Respondent’s  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  for  non-implementation  of  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)

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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

the  Hubli-Dharwad  Urban  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,  Hubli-Dharwad  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

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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 the non-consideration of 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.     

12. In view of the above, the judgment of the High Court is

set aside and the Appeal is allowed.      

.…............................J.                                     [ANIL R. DAVE]

                                             ................................J.                                                [L. NAGESWARA RAO]

New Delhi, October 03, 2016

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