Determination of ‘excess land’ depends upon the status of land during commencement of the Principal Act: Supreme Court
The determination of ‘excess land’ is to be made considering the status of the land at the time of commencement of the Principal Act, and not at the time of filing of the declaration. The section 6 of the Principle Act, which requires the filing of statement before the competent authority for vacant land and ceiling area, states ‘at the commencement of the Act’ in its provision and not the time of filing the declaration. This principle was upheld by the Supreme Court presided by J. MOHAN M. SHANTANAGOUDAR & J. VINEET SARAN in the case of U.A. Basheer Thr. G.P.A. Holder vs. State of Karnataka & Anr. [CIVIL APPEAL NO. 3032 OF 2010].
In the present case, five properties totally measuring 3 acres and 11 cents, situated in Ullal village, Mangalore Agglomeration, originally belonged to the joint family of two sisters. One had three children and the other had seven children. After their death, the Appellant’s case is that their ten children benefited through a registered partition deed. Through the said partition deed a share of 1983 sq. mts. of land, including land to the extent of 30 cents, children got their share. The Urban Land Act, 1976 came into force in Karnataka and Padmanabha, one of the seven children, filed a statement under Section 6(1) of the Principal Act declaring the particulars of the joint family property. Thereafter, the Deputy Commissioner and Competent Authority, Mangalore Urban Agglomeration issued a draft statement under Section 8(1) of the Principal Act to the declarant, i.e., Padmanabha to surrender excess vacant land of 9,489.48 sq. mts. Padmanabha filed objections stating that the individual share of each of the children subsequent to the partition was within the ceiling limit prescribed under the Principal Act. The Competent Authority passed an order holding that the partition deed having been affected subsequent to the commencement of the Principal Act, the same could not be considered as per the Principal Act. Subsequently, the Competent Authority passed an award fixing compensation for the said excess land at Rs.15,630. The Appellant filed a petition under Urban Land Repeal Act, 1999 praying for his name to be restored in the RTC, inter alia on the grounds that the Competent Authority had not issued notice to the Appellant regarding taking of possession of the suit property. The Competent Authority had not taken physical possession of the suit property as on the date of commencement of the Repeal Act. Hence, as per the provisions of the Repeal Act, the proceedings would abate and the Competent Authority could not take further action under the Principal Act. The said petition was rejected by the Competent Authority. Thereafter, the Appellant approached the High Court by way of Writ Petition which was dismissed. Aggrieved, the Appellant came before this Court.
The honorable court observed, “The determination of ‘excess land’ is to be made considering the status of the land at the time of commencement of the Principal Act, and not at the time of filing of the declaration. In our considered opinion, since it is an admitted fact that the partition, if any, was only effected after the Principal Act’s commencement, the Division Bench was correct in holding that the partition deed would not affect the validity of the Competent Authority’s determination of excess land owned by the joint family at the time of commencement of the Act. Hence, to this limited extent, we concur with the findings of the Division Bench.”
The court further held, ”Since the learned Single Judge has already given a definite factual finding as to the question of the Appellant’s ownership and possession of the suit property in his judgment, we do not think it appropriate to remit the matter to the learned Single Judge. Instead, we direct the matter to be remitted to the Division Bench of the Karnataka High Court to consider the case afresh. All questions of fact outlined above are to remain open, and the parties are given liberty to place on record additional evidence not made a part of the proceedings heretofore.”