IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE: THE HON BLE MR. JUSTICE ANAND BYRAREDDY. WRIT PETITION No OF 2011 (LA-BDA) CONNECTED WITH

Transcription

1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 20 Th DAY OF NOVEMBER 2012 BEFORE: THE HON BLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION No OF 2011 (LA-BDA) CONNECTED WITH WRIT PETITION Nos OF 2010 AND OF 2010 (LA-BDA) WRIT PETITION Nos OF 2010 (LA-BDA) IN W.P.No OF 2011 BETWEEN: 1. Mrs. B.S. Nayana Shree, Wife of B.S.Sathish, Aged 37 years, 2. Kum. B.S. Shreya, Daughter of B.S. Sathish, Aged 17 years, Being minor Represented by her father and natural guardian, Sri. B.S. Sathish,

2 2 Residing at No.515, 46 th Cross, 5 th Block, Jayanagar, Bangalore PETITIONERS (By Shri. Malla Reddy B.V., Advocate ) AND: 1. The State of Karnataka, Represented by its Secretary Department of Housing and Urban Development, M.S.Building, Vidhana Soudha, Bangalore The Bangalore Development Authority, Kumara Park West, T. Chowdaiah Road, Bangalore , Represented by its Commissioner. RESPONDENTS (By Shri. V.Y. Kumar, Advocate for Respondent No.2 Shri. K.S. Mallikarjunaiah, Government Pleader for Respondent No.1 ) ***** This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to call for the records such as notification Master Layout Plan etc., regarding acquisition of the land in Sy.No.52/1 of Bommanahalli Village, Begur Hobli, Bangalore South Taluk, for formation of Hosur Road Sarjapur Road Layout (HSR Layout), Bangalore, under preliminary Notification dated (published in the Karnataka Gazette on in part III 1 at pages 10 to 36) and final

3 3 Notification dated , from the second respondent and etc; IN W.P.Nos and to 533 of 2010 BETWEEN: 1. V. Govinda Reddy, Son of Late Venkata Reddy.C, Aged 75 years, Residing at No.20, M.N. Krishna Rao Road, Basavanagudi, Bangalore Jagadish Reddy. G, Son of Govinda Reddy. V, Aged 40 years, Residing at No.20, M.N.Krishna Rao Road, Basavanagudi, Bangalore Sharath Reddy.M, Son of Late C. Muni Reddy, Aged 49 years, Residing at No. 42, Nanjappa Road, Shanthinagar, Bangalore Smt. Udaya Reddy, Daughter of Late C. Muni Reddy, Aged 44 years, Residing at No.42,

4 4 Nanjappa Road, Shanthingaagar, Bangalore PETITIONERS (By Shri. Ramdas, Senior Advocate for Shri. Pradeep S. Sawkar, Advocate for M/s. Sundaraswamy and Ramdas, Associates) AND: 1. The State of Karnataka, By its Secretary to Government, Department of Housing and Urban Development, Dr. Ambedkar Veedhi, Bangalore The Bangalore Development Authority, Kumarapark West, Bangalore, Represented by its Commissioner. 3. The Special Land Acquisition Officer, Bangalore Development Authority, Kumara Park West, Bangalore RESPONDENTS (By Shri. I.G. Gachchinamuth, Advocate for Respondent Nos. 2 and 3 Shri. K.S. Mallikarjunaiah, Government Pleader for Respondent No.1) *****

5 5 These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to declare that the improvement scheme for the formation of layout called between Hosur Road and Sarjapura Road sanctioned by the BDA dated has lapsed as provided under Section 27 of the Bangalore Development Authority Act, 1976 and that the provisions of Section 36 of the Bangalore Development Authority Act, 1976 has become in-operative and etc; IN W.P.Nos OF 2010 BETWEEN: 1. Sri. A. Mohan, Son of V. Ayodyaraman, Aged about 65 years, Residing at No.9-A, New No.22, Vasundara Nivas, Sannidi Road, Basavanagudi, Bangalore Sri.Y. Ashokreddy, Son of Late B. Yellareddy, Aged about 51 years, Residing at No.421, 10 th Cross, 18 th Main, J.P.Nagar, 2 nd Stage, Bangalore Sri. Yella Reddy, Since dead his legal representative, Sri. Y. Jayaramareddy, Aged about 58 years,

6 6 Residing at Yarandahalli Village, Hennanagra (post), Anekal Taluk, Bangalore District. 4. Sri. M. Narayanareddy, Son of B. Madhareddy, Aged about 67 years, 5. Smt. Y. Saroja, Wife of M. Narayanareddy, Aged about 64 years, Petitioner Nos. 4 and 5 are Residing at No.201, 5 th Cross, 1 st Block, Jayanagar, Bangalore Sri. C.K. Raghu, Son of Late Krishnamurthy, Aged about 44 years, 7. Sri. C.K. Venkatesh, Son of Late Krishnamurthy, Aged about 38 years, 8. Sri. C.K. Srinivas, Son of Late Krishnamurthy, Aged about 34 years, Petitioner Nos. 6 to 8 are Residing at No.951, 5 th Block, 65 th Cross, Rajajinagar,

7 7 Bangalore Sri. M.C. Doreswamy, Son of V. Channappa, Aged about 69 years, Residing at No.797/B, 1 st B Main Road, Vyalikaval, Bangalore Smt. Mallika Yaqoob, Wife of Yaqoobsharif, Aged about 54 years, Residing at No.139, Shivaji Road, Shivajinagar, Bangalore Sri. L. Purushotham, Since dead his legal representative, Sri. P.Srinivas, Aged about 50 years, Residing at No.24, Koramangala Industrial Layout, Bangalore Smt. Y. Channamma, Wife of Late Chinnaswamy Reddy S.P., Aged about 57 years, Residing at Yarandahalli village, Hennanagra, (Post), Anekal Taluk, Bangalore District.

8 8 13.Sri. N.G.Krishnareddy, Son of K.N.Reddy, Aged about 51 years, 14. Smt. H.L. Usha, Wife of Sri. N. Nagarajareddy, Aged about 47 years, The petitioner Nos. 13 and 14 are residing at No.530, A.T. street, V.V.Puram, Bangalore Smt. Y. Kokila, Wife of Jayapalareddy, Aged about 55 years, Residing at No.12, A cross, 29 th Main, B.T.M. 2 nd Stage, Bangalore Smt. Sharada K. Reddy, Wife of Sri. C. Krishnareddy, Aged about 55 years, Residing at No.16/4, 4 th Cross, Lakkasandra Extension, Wilson Garden, Bangalore Sri. A. Prakash, Son of P. Appaiah, Aged about 57 years, Residing at No.488, 2/B, 39 Cross, 8 th Cross, Jayanagar,

9 9 Bangalore Smt. P. Manoranjitham, Wife of S.K.Srinivasan, Aged about 56 years, Residing at No. L-32, Temple Road, Hosoor, Dharmapuri District, Tamilnadu. 19. Sri. Shivakumar, Son of S.K.Srinivasan, Aged about 51 years, Residing at Shiva Complex, Bhagalur Road, Hosur, Dharmapuri District, Tamilnadu. 20. Sri.Chaturbhuj Sharma, Son of Late Arjundutt Sharma, Aged about 59 years, Residing at No.21, 6 th cross, Lakshmi Road, Shanthinagar, Bangalore Sri. Bharathi M.Mehta, Son of Manshuklal Mehta, Aged about 49 years, Residing at No.7/10-A-9, Chaabriya Layout, Kumarakrupa Road, Highgrounds, Bangalore

10 10 22.Sri. Gunavant M. Mehta, Son of Sri. Manshuklal Mehta, Aged about 51 years, Residing at No.7/10, A-9, Chaabria Layout, Kumara Krupa Road, High Grounds, Bangalore Smt. Kalpana A. Reddy, Wife of Sri. Ashok Reddy, Aged about 43 years, Residing at Yarandahalli Village, Jigani Hobli, Anekal Taluk, Bangalore District. 24. M/s. Medicon Leather Private Limited, A company incorporated under the Companies Act, 1956, represented its Director, Sri. Ramesh Bul Chandani, Having office at No.13/94, Hosur Main Road, Madivala, Bangalore M/s. Vinpla Plating Private Limited, A company registered under Companies Act, 1956, represented by its Director, Sri. M.K. Mahesh, Son of M.V. Keshuvulu, Aged about 48 years, Having officer at No.4, 2 nd Main, Vasundara Compound, Rajeev Gandhi Nagar,

11 11 Bommanahalli, Hosur Road, Bangalore M/s. Ramya Reprographic Private Limited, a company registered Under the Companies Act, 1956, Represented by its Director, R. Narendra, Son of D. Ramareddy, Aged about 40 years, Having office at No.290/2/3/4, 3 rd Cross, Rajeev Gandhi Road, Bommanahalli, Bangalore Sri. H.N.Jayaramareddy, Son of Late H.D.Nagappareddy, Aged about 73 years, Residing at 5 th cross, Chikkabasavanapura, T.C. Palya Post, Bangalore Sri. R. Srinivasa Reddy, Son of B. Ramareddy, Aged about 45 years, Residing at No.341/2, Ramaiah Garden, Hulimavu, B.G.Road, Bangalore Sri. S.C. Ramesh Babu, Son of S. Eshwar Rao, Aged about 52 years,

12 12 Residing at No.1254, 9 th B-Cross, Kaviranna Road, Hanumanthanagara, Bangalore PETITIONERS (By Shri. M. Veerbhadraiah, Advocate) AND: 1. State of Karnataka, By its Secretary, Department of Housing and Urban Development, Vidhana Soudha, Bangalore The Commissioner, Bangalore Development Authority, Kumara Park West, Bangalore The Special Land Acquisition Officer, Bangalore Development Authority, Kumara Park West, Bangalore The Executive Engineer, Bangalore Development Authority, East Zone, B.D.A. Complex, H.S.R. Layout, Bangalore The Superintendent of Police, Task Force, attached to the

13 13 office of B.D.A., Kumara Park West, Bangalore RESPONDENTS (By Shri. K.S. Mallikarjunaiah, Government Pleader for Respondent No.1 Shri. Narendra Gowda, Advocate for Respondent No.2 to 5) ***** These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to declare that the acquisition initiated by the respondent No.1 and 2 vide notification dated , notification issued by the second respondent gazetted on as per Annexure-F and the final notification dated published in gazette on as per Annexure-H have lapsed in view of the section 27 of the BDA Act as such it does not vest with the second respondent as far as in relation to the petitioners land is concerned in respect of 1-acre, 4-guntas in Sy.No.49/2, 1-acre 07-guntas in Sy. No.49/7, 28 guntas in Sy. No.49/8, 28 guntas including 5- guntas Phot Kharab in Sy. No.49/9, 1 acre 20 guntas in Sy. No.50, 24-guntas in Sy. No.53/1, situated at Bommanahalli Village, Begur Hobli, Bangalore South Taluk and etc; These petitions, having been heard and reserved on and coming on for Pronouncement of Orders this day, the Court delivered the following:-

14 14 O R D E R These petitions are heard and disposed of to-gether, having regard to a common ground of challenge available to all the petitioners herein. 2. The facts briefly stated in each of these cases is as hereunder: In W.P.No.32456/2011, it is the claim of the petitioners that the land bearing survey no.52/1 originally belonged to one Ramachandra Gurappa Tambre, who had acquired it in the year He had got the land converted for non-agricultural nonresidential premises, vide conversion order dated Tambre had then put up construction over the said property. The same was sold to one B.S. Vivek and two others under a Sale deed dated The petitioners had purchased the property from the said Vivek and others under a sale deed dated In this background, it is stated that the State Government had issued a preliminary notification dated and a final

15 15 notification dated under the provisions of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the BDA Act, for brevity). However, the notified khatedar in respect of the property which is held by the petitioners, though covered under the notifications did not reflect the name of Tambre but certain others. Incidentally, the land in question is said to have been notified for acquisition for the formation of the Hosur- Sarjapur Road Layout under the provisions of the BDA Act. Though the petitioners possession has not been disturbed and the authorities have not chosen to implement the Scheme if any of formation of any layout over the land in question, even after long lapse of time. However, since recently there is a looming threat of summary ejectment from the land in question by the Bangalore Development Authority (Hereinafter referred to as the BDA for brevity), the petitioners are before this Court, questioning the subsisting right of BDA to implement any Scheme in respect of the land in question even after long lapse of time.

16 16 3. In W.P to 30696/2010, petitioner nos.2 to 29 claim that they are the purchasers of various parcels land sold by one Ayodyaraman, in a private layout formed in land bearing Survey nos.49/2, 49/7, 49/8, 49/9, 50 and 53/1 of Bommanahalli, Begur Hobli, Bangalore South Taluk. It transpires that the BDA has published a preliminary notification dated , proposing to acquire vast extent of lands of various villages including Bommanahalli. The above lands also being included, the erstwhile holder had filed objections to the said proposed acquisition. However, a final notification dated is said to have been published. It is contended that though awards seem to have been passed in respect of the several parcels of land so notified for acquisition, the glaring circumstance is that the award is passed 24 years after the final notification is published, with no explanation forthcoming for the long lapse of time separating the events. It is therefore contended that having regard to the tenor of Section 27 of the BDA Act, the Scheme pursuant to which the acquisition proceedings are initiated, would lapse.

17 17 4. In W.P /2010 and W.P /2010, the petitioners herein are said to be the former partners of a partnership firm, namely, M/s. Madras Bangalore Transport Company (Hereinafter referred to as the MBTC for brevity). MBTC owned lands in Survey Nos.49/1, 49/7, 49/11, 53/2 and 53/3 of Bommanahalli village, Begur Hobli, Bangalore South Taluk, which are described in Schedules A, B, C, D and E, respectively. The said lands were acquired under registered sale deeds dated , , and The company was dissolved in the year 1970 and the partners continued to be in possession and enjoyment of the lands as absolute owners. The petitioners had converted the said lands into nonagricultural purpose and they have put up factory sheds, godowns and buildings, after obtaining necessary approval and sanctioned plan from the City Improvement Trust Board, the predecessor-in-

18 18 interest of the second respondent BDA. The petitioners are in peaceful possession of the said lands. 5. In this background, the BDA had issued a preliminary notification dated for acquisition of the petitioners lands under the BDA Act for formation of a layout called Between Hosur Road and Sarjapura Road, and a final notification dated under Sections 17 and 19 of the BDA Act. There was no notice to the petitioners. The obvious circumstance is that the award was passed 23 years after the final notification was published. It is therefore contended that having regard to the tenor of Section 27 of the BDA Act, the Scheme would lapse. 6. It is hence contended that there is no explanation forthcoming insofar as the inordinate delay in passing the award, which would have the effect of pegging the value for the purpose of determining the compensation to the disadvantage of the

19 19 petitioners. It is contended that the apex court, while considering identical circumstances, as reported in the case of Ramchand and others vs. Union of India, (1994)1 SCC 44 (Paragraphs 25 to 27), has expressed its displeasure in the authorities proceeding in a situation such as the present one and the same would be applicable on all fours to the present case. It is also brought to the attention of this court, that this court, in writ petitions in WP /2011, has while discussing the entire case law on the point, including Ramchand s case, supra, has quashed the proceedings insofar as the petitioners therein were concerned and the present petitioners claim that they are aggrieved under identical circumstances and by a parity of reasoning, would claim that the petition be allowed. It is further brought to the attention of this court that in WP /2010 dated , this court has again applied the very law in allowing the petitions on similar grounds. 7. On a consideration of the above rival contentions, there is no dispute that the BDA has passed an award in the year 2010 just

20 20 prior to the filing of the petition and would clearly be a circumstance, which has been contemplated by the Supreme Court in Ramchand s case, supra, wherein the apex court has held as follows: 25. There appears to be some force in the contention of the petitioners that the object of respondents was to peg the price of the lands acquired from the different cultivators to a distant past and not to proceed further because if the awards had been made soon after the declarations under Section 6, respondents had to pay or tender the compensation to the claimants, which for some compulsion, respondents were not in a position to pay or tender them. But, nonetheless, the exercise of power in the facts and circumstances of the cases by the respondents has to be held to be against the spirit of the provisions of the Act, tending towards arbitrariness. In such a situation this Court in exercise of power under Article 32 and the High Court under Article 226, could have quashed the proceedings. But, taking into consideration that in most of the cases, the Delhi Administration and Delhi Development Authority have taken possession of the lands and even developments have been made, it shall not be proper exercise of discretion on the part of this Court to quash the proceedings because, in that event, it shall affect the

21 21 public interest. Moreover, third party interests created in the meantime are also likely to be affected and such third parties are not impleaded. The relief of quashing the acquisition proceeding having become inappropriate due to the subsequent events, the grant of a modified relief, considered appropriate in the circumstances, would be the proper course to adopt. The High Court or this Court, can grant a modified relief taking into consideration the injury caused to the claimants by the inaction on the part of respondents and direct payment of any additional amount, in exercise of power under Article 226 or Article 32 of the Constitution. 26. We are of the view, that there was no justification on the part of the respondents for the delay in completion of the proceedings after the judgment of this Court in Aflatoon case ( (1975) 4 SCC 285 ) on August 23, There is no explanation, except that there were several cases and, as such, in normal course, there was bound to be delay in making of the awards. This may have been acceptable if the delay was only in respect of some of the awards. It is an admitted position that till 1980 no award had been made in respect of any of the acquisitions. As such, the respondents have failed to satisfy that they have performed their statutory duty within a time which can be held to be reasonable.

22 According to us, after the judgment of this Court in Aflatoon case ( (1975) 4 SCC 285 ) on August 23, 1974, the reasonable time for making the awards was about two years from that date. Beyond two years, the time taken for making of the awards will be deemed to be unreasonable. As such, after expiry of the period of two years, some additional compensation has to be awarded to the cultivators. Taking into consideration the interest of the cultivators and the public, instead of quashing the proceedings for acquisition, we direct that the petitioners shall be paid an additional amount of compensation to be calculated at the rate of twelve per cent per annum, after expiry of two years from August 23, 1974, the date of the judgment of this Court in Aflatoon case till the date of the making of the awards by the Collector, to be calculated with reference to the market value of the lands in question on the date of the notifications under sub-section (1) of Section 4. This would squarely apply to the present case on hand. Following the decisions of this court in earlier writ proceedings referred to hereinabove, the BDA having shown positive inaction, the acquisition proceedings are liable to be quashed on account of the inordinate and unexplained delay in the proceedings.

23 23 Accordingly, the writ petitions are allowed. The impugned Annexures are quashed. While it is made clear that it is always open to the respondent BDA, to resort to fresh acquisition proceedings, if indeed, the lands in question are required for any public purpose, in accordance with law. Sd/- JUDGE nv