IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE THE HON BLE MR. JUSTICE ANAND BYRAREDDY

Transcription

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU Between: DATED THIS THE 26 th DAY OF FEBRUARY, 2016 BEFORE THE HON BLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION NO OF 2013 AND WRIT PETITION NOs /2013 (LA - BDA) 1. S.R. Chowdappa, S/o Ramaiah, Aged about 72 Years, 2. S.R. Munichowdappa, S/o Ramaiah, Aged about 70 Years, 3. S.R. Muniyappa, S/o Ramaiah, Aged about 68 Years, 4. S.R. Venkatesh, S/o Ramaiah, Aged about 61 Years, Petitioners are residing at No.85, Ramaiah Lay Out, Suddagunte Palya, Dharmaram College Post, Bangalore Petitioners

2 2 (By Shri. Y.R. Sadashivareddy, Sr. Counsel for Shri. Sahadeva Reddy D.N., Adv.) And: 1. State of Karnataka, Represented by its Secretary, Housing and Urban Development Department, Vidhana Soudha, Bangalore Bangalore Development Authority, Bangalore, Represented by its Commissioner, Kumara Park West, T. Chowdaiah Road, Bangalore The Special Land Acquisition Officer, Bangalore Development Authority, Kumara Park West, T. Chowdaiah Road, Bangalore Respondents (By Shri. Vijaykumar. A. Patil, AGA for R1, Shri. K.M. Nataraj, Sr. Counsel for Shri. K. Krishna, Adv. for R2 & R3) --- These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to the respondents produce any documents to show that the property of the petitioners is acquired under the notifications dated and , declare that the scheme shall lapse under Section 27 of the B.D.A. Act and etc.,

3 3 These Petitions coming on for Preliminary Hearing in B Group this day, the Court made the following:- O R D E R Heard the learned Senior Advocate Shri Y R Sadashivareddy appearing for the counsel for the petitioner and the learned Senior Advocate Shri K M Nataraj appearing for the counsel for the Bangalore Development Authority. 2. The facts are the petitioners are said to be the absolute owners of the land bearing Sy.No.18/10C measuring 0.26 guntas, and Survey No.30/4B measuring guntas, and Survey No.30/5 measuring 0.01 gunta totally measuring guntas, situated at Roopena Agrahara, Begur Hobli, Bangalore South Taluk. The petitioners claim to have inherited the property, but the katha in respect of the property stood in the name of his father and he was in possession of the property till his

4 4 death. Thereafter the petitioners have been in possession of the property. 3. It is stated that during the year 2007 the petitioners were clearing the overgrowth in the property, when the officials of the Bangalore Development Authority had obstructed the petitioners on the ground that the BDA had acquired the property. It is thereafter the petitioners had learnt that notifications were issued under Sections 17 and 19 respectively, of the Bangalore Development Authority Act, 1976 vide preliminary notification dated and final notification dated for the formation of Hosur Road - Sarjapur Road Layout in respect of several properties that were notified. It is the case of the petitioners that though such notifications had been issued no award was passed and possession was also not taken as per the knowledge of the petitioner, as they were not served with any notices of such proceedings and hence it was urged that in terms of Section 27 of the Bangalore

5 5 Development Authority Act, 1976, (herein after referred to as the BDA Act' for brevity) when the Scheme has not been substantially implemented within five years from the date of final notification, the Scheme has lapsed and since physical possession has not been taken even as on date, the property is overgrown with partheniam plants and the Bangalore Development Authority has not chosen to implement the Scheme over the said land, the present petition is filed. 4. The learned Senior Advocate Shri Sadashiva Reddy would point out that it is not the case of the Bangalore Development Authority that the petitioner s lands were previously not notified, that though father of the petitioner was the owner of the land being the grantee of inam land, the notifications were issued only in the name of original jodidars who had been divested of the land and therefore the entire notification so far as the petitioner s land was concerned was invalid and ineffective. Further

6 6 the question of the Bangalore Development Authority having taken possession of the land also would not arise as even today the land remains vacant and though the layout is said to have been formed long ago, this land has not been utilized for the purpose of formation of any layout and it continues to be vacant land and the petitioners have, on and off exercised possession of the land in maintaining the same. It is also pointed out that the mutation entries have been effected in favour of the petitioners prior to the preliminary notification and ignoring the revenue entries, as well as the other documents, to show that the petitioners and before them their father, was the owner of the land the Bangalore Development Authority has willfully proceeded against the erstwhile jodidar, who had no interest in the property and therefore the entire acquisition is bad in law and further the award not having been passed to the knowledge of the petitioners and possession not having been taken, the Scheme is deemed to have lapsed.

7 7 It is contended that, in this regard this Court has already taken a view in respect of neighboring land in the case of G Dayalu and others vs. State of Karnataka and others (W.P. Nos and of 2014 by an order dated as recent as wherein this court after having noticed that the very notification was under challenge by a person claiming that possession had not been taken of the land in question. This court has proceeded to hold that notwithstanding that the Scheme may have been implemented substantially a pocket of land having remained without possession being taken of the same, and the Scheme not having been implemented over the same, the acquisition also having lapsed in view of physical possession not having been taken. By the same token of reasoning the learned Senior Advocate would submit, that the present petition would also have to be allowed.

8 8 5. However, in the present case on hand the learned Senior Advocate Shri K M Nataraj appearing for the counsel for the Bangalore Development Authority, would point out that the petition proceeds on certain wrong premises that the preliminary notification and final notification are of the year 1984 and 1986, respectively. The Scheme was substantially implemented. The notified kathedar A Srinivasa Rao had in fact filed an application dated under Section 18 of the Land Acquisition Act seeking reference for enhancement of compensation. It is thereafter a final notification was issued and gazetted. The Srinivasa Rao had filed a claim petition seeking compensation at the rate of Rs.50/- per yard with other benefits. The notice had been issued to the father of the petitioner and other notified kathedars. Spot inspection of the lands in question were conducted and the lands in question were found to be vacant. The award was passed on and the same has been approved on

9 Possession of the lands in question were taken on and handed over to the Engineering Section of the Bangalore Development Authority. The award amount has been deposited in civil court under Section 30 and 31 of the Land Acquisition Act on Notification under Section 16(2) of the Land Acquisition Act has been issued on and gazetted on After issuance of final notification, before passing of the award, at the time conducting the spot inspection it came to the notice of the Bangalore Development Authority that subsequent to the issuance of the final notification the land in Sy.No.18/10 totally measuring 1 acre 34 guntas were phoded into Sy.No.18/10A measuring 0.22 guntas, Sy.No.18/10B measuring 0.26 guntas and Sy.No.18/10C measuring 0.26 guntas. 6. It is further claimed that in so far as land bearing Sy.No.30/5 of Rupena Agrahara village measuring

10 gunta of land, award was passed on and the same has been approved on Possession of the land was taken on and handed over to the Engineering Section. Award amount deposited in the Civil Court on Notification under Section 16(2) of the Land Acquisition Act has been issued on and gazetted on In so far as land bearing Sy.No.30/4, similar details are furnished as to the date of passing of the award, taking of possession and handing over the land to the Engineering Section and deposit of the amount made in the Civil Court. 7. Therefore, the contention that no award was passed or possession having been taken of the lands in question is contrary to the record. It is further contended that the petitioners seeking a prayer that the Scheme not having been implemented even over a pocket of land, and though the Scheme is implemented in respect of other lands, there could be a declaration, would run counter to

11 11 the Division Bench Judgment of this Court in the case of Krishnamurthy vs. Bangalore Development Authority reported in ILR 1996 KAR 1258, wherein it is opined that to claim that the Scheme has lapsed in terms of Section 27 of the Bangalore Development Authority Act following an earlier decision by a Division Bench in the case of Narayanaswamy Reddy vs. State (W.A.Nos.321 and 322 of 1989 DD ) it is explained that for the Scheme to lapse under Section 27, there must be dereliction of duty or failure on the part of the authority to execute the Scheme specifically within five years from the date of publication in the official gazette and a declaration under Section 19(1) of the Act. The two conditions to be fulfilled to attract the provisions of this Section are, there must be failure to execute the Scheme i.e., there must be dereliction of statutory duties without justification and not a mere delay in execution of the Scheme. Secondly, substantial execution in the context depends on the magnitude of the

12 12 Scheme and the nature of the work to be executed. Though the burden is upon the Bangalore Development Authority to furnish material to the Court to show that there is substantial execution on the matter, it is for the appellant to place necessary material before the court to show that there has been dereliction of statutory duties and not mere delay in implementing the Scheme. No such foundation has been laid on that aspect on the part of the Bangalore Development Authority. Further it is explained that a period of five years to lapse from the date of the final notification, the subsequent delay in the appellant not having taken any steps to have the same declared as having lapsed is also to be explained and 7 years after the Scheme is said to have lapsed, on the expiry of five years from the date of final notification. The Court has taken a strict view and has held that the matter would have to be dismissed as being barred by delay and laches.

13 13 8. The learned Senior Advocate Shri Nataraj would thus submit that material is placed before this court to show that an award is passed and possession has been taken and hence it cannot be said that the Scheme has lapsed in view of the same has not being implemented. On the other hand it is not the case of the petitioner that the Hosur Road Sarjapur Road layout has not been formed. It is the case of the petitioner that this is a pocket of land which has remained without being integrated in the layout that being not a ground to say that the Scheme has lapsed and hence seeks dismissal of the petition. 9. In the above circumstances the contention that this Court has passed an order on in respect of neighboring land to hold that the Scheme has lapsed even in respect of a pocket of land, notwithstanding that the Scheme may have been implemented in respect of the other extent of land is in the significant circumstance, that the

14 14 Bangalore Development Authority in that case, has categorically admitted that according to the records maintained, physical possession had never been taken and there is no record in respect of the same and further contention was urged that even if the Scheme has lapsed the acquisition would not, in view of the law laid down by the Supreme Court in the case of Offshore Holdings Private Limited vs. BDA and others reported in 2011 (3) SCC 139. However, since physical possession was not taken it could not be said that the land had vested in the State to use the same for some other public purpose. It is in that background that the petition was allowed in respect of the said pocket of the land. In other words, it could be said that the Bangalore Development Authority had abandoned the acquisition proceedings in respect of that pocket of land the same cannot be said in the present case on hand as there is material on record to demonstrate that the BDA has taken possession of the land and that an award has

15 15 been passed and the award amount has been deposited in the Civil Court. Therefore acquisition proceedings having been completed, even if it is held that the Scheme has lapsed, the acquisition would not, and hence petitioner is not entitled to any reliefs and accordingly the petition is dismissed. SD/- JUDGE ykl