Authority Can't Decline Landowners' Plea For Layout Plan Approval Unless Acquisition Notification Is Published For Scheme Formation: Karnataka HC

The court said “...we find that the application filed by the contesting respondents/writ petitioners seeking approval of layout plan at the hands of Vijayapura Urban Development Authority was required to be considered by the authority in accordance with the provisions of the Karnataka Town and Country Planning Act. An endorsement could not have been issued by the authority declining to sanction the plan on the ground that scheme was proposed by the authority way back in the year 2010 for development. A right would arise to the authority to decline such application only if a notification is duly published preliminarily for acquisition of the lands for formation of a scheme or a layout. The Urban Development Authority would get a right to decline such an application only if an acquisition notification is published in accordance with law".

The respondent persons (before the division bench) had filed a writ petition before the Single judge that the Vijayapura Urban Development Authority had not acted on their application seeking approval of a layout plan. The writ petitioners were informed that their lands were included in a scheme proposed by the authority under Notification of August 13, 2010 notified in the Official Gazette on August 26, 2010. The scheme was announced under Sections 17(1) & 17(3) of the Karnataka Urban Development Authorities Act. The Vijaypura Urban Development Authority had proposed the scheme to form a residential layout for the benefit of the general public in terms of Sections 35 and 36 of the Act.

In terms of Section 35, the authority is empowered to enter into an agreement with the owner of any land, with prior approval of the Government which would enable the authority to allot developed sites to the owner of the land in lieu of compensation determined in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act as could be found in Rule 3 of the Karnataka Urban Development Authorities (Allotment of Sites in Lieu of Compensation for the Land Acquired) Rules.

The Single judge had allowed the petitions noticing the fact that earlier too, the court dealt with such matters where such schemes were announced by the State and the concerned Urban Development Authority, and had declared that the scheme proposed by the State and the Authority had lapsed.

A direction was also issued to the State to communicate the orders passed in the earlier petitions to all concerned authorities under their jurisdiction covered under 50:50 scheme for development of residential plots about the lapsing of the scheme.

The appellant State argued that the State Government has floated such a scheme having regard to the express provisions contained in Sections 35 & 36 of the Act, 1987 and under the Karnataka Urban Development Authorities (Allotment of Sites in lieu of Compensation for the Land Acquired) Rules, 2009.

Further, such schemes have been formulated and notified for the benefit of the general public and to ensure that the residential sites are allotted to persons who do not have houses of their own. Mere lapsing of the scheme would not disentitle the authority from acquiring the land afresh and such directions could not have been issued by the learned Single Judge.

Findings

The bench on going through the provisions under the Act, noted in terms of Section 18 of the Act, 1987, after publication of the scheme and service of notice as provided in Section 17 and after consideration of the representations, the authority is required to submit the scheme for the sanction of the Government furnishing a description with full particulars of the scheme including the reasons for any modification inserted therein; complete plans and estimate of the costs of executing the scheme, etc.

Thereafter, in terms of the Section 19, after sanction of the scheme, the Government shall publish in the official gazette a declaration stating the fact of such sanction and that the land proposed to be acquired by the authority for the purpose of the scheme is required for a public purpose.

The bench then said “In the present case there is no declaration notified under Section 19(1) of the Act at the hands of the State Government. What is notified is only a proposal for a scheme under Section 17(1) and 17(3) of the Act, 1987.”

Observing that “The question of lapsing of the scheme in the present context arising out of the Act, 1987, would arise only if a declaration under Section 19(1) of the Act is issued by the State Government. Such declaration not having been issued by the State Government in terms of Section 19(1) of the Act, 1987, this Court should hold that nothing else has happened at the hands of Vijayapura Urban Development Authority and the State Government, other than publishing a notification under Sections 17(1) and 17(3) of the Act, 1987.”

Thus it held “The learned Single Judge is right while holding that the scheme has lapsed, since admittedly the notification under Sections 17(1) and 17(3) of the Act, 1987 was issued on 13.08.2010 and gazetted on 26.08.2010, and nearly 14 years have elapsed pursuant to the said notification.”

The court opined that it is by now well settled that though right to property is not a fundamental right, nevertheless, it continues to be a constitutional right arising out of Article 300A of the Constitution.

Noticing that no declaration is issued under Section 19 of the Act, 1987, or any other acquisition notification, be it under the Land Acquisition Act, 1894 or Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The question of vesting of land in the Government, therefore, would not arise.

The court questioned the maintainability of the appeal filed by the state government saying “We fail to understand as to how the State Government is aggrieved by the impugned order”, adding that the urban development authority had not approached the bench in appeal.

"We should also notice that alternative prayers are made in the appeal that mere lapsing of the scheme would not disentitle the authority from acquiring the land afresh. There can be no cavil to this argument that the State while exercising its eminent domain power has all the liberty to issue a notification for acquisition and proceed in accordance with law. However, even before a preliminary notification is issued, it would not lie in the mouth of the State to contend that the authority should not permit the development of the lands at the hands of the owners," the court said.

Case Title: Principal Secretary To Government & ANR AND Mahaveen Oswal and Others

Appearance: AAG Malhar Rao K a/w GA Mallikarjun C Basareddy for Appellant.

Advocate Sanganabasava B Patil for R1 & R2.

Advocate S S Halalli for R3.

Citation No: 2024 LiveLaw (Kar) 519

Case No: WRIT APPEAL NO.200165 OF 2023