IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR. JUSTICE ANAND BYRAREDDY. WRIT PETITION No.5740 OF 2007 (LA-BDA)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 27 TH DAY OF AUGUST 2012 BEFORE THE HON BLE MR. JUSTICE ANAND BYRAREDDY BETWEEN: WRIT PETITION No.5740 OF 2007 (LA-BDA) 1. Smt. Chanchal Chanchal Kanwar, Wife of Late J.Dhanraj Jain, Aged about 63 years, 2. Sri. D. Jawaharlal, Son of Late J.Dhanraj jain, Aged about 43 years, 3. D. Kushal Raj, Son of Late J.Dhanraj Jain, Aged about 41 years, 4. D. Ramesh Kumar, Son of Late J.Dhanraj Jain, Aged about 39 years, 5. Dr. D.Chandra Prakash, Son of Late J.Dhanraj jain, Aged about 37 years,

2 2 6. D. Kamal Chand, Son of Late J. Dhanraj Jain, Aged about 34 years, All are residing at No.45, Puliyar Koil Street, Ashoknagar, Bangalore PETITIONERS (By Shri. S. Rajashekar and Shri. R.Ramesh, Advocates for M/s. Black Coats Law Firm) AND: 1. The Bangalore Development Authority, Kumara Park West, T.Chowdaiah Road, Bangalore The Bruhat Bangalore Mahanagara Palike, N.R.Square, J.C.Road, Bangalore , Represented by its Commissioner. 3. M/s. Hotel Leela Venture Limited, C/o. Hotel Leela Palace, Old Airport Road, H.A.L. 2 nd Stage, Bangalore Represented by Managing Director. RESPONDENTS (By Shri. Udaya Holla, Senior Counsel for Shri. K. Krishna, Advocate for Respondent No.1

3 3 Shri. Subramanya, Advocate for M/s. Ashok Haranahalli Associates for Respondent No.2 Shri. K.G.Raghavan, Senior Counsel for M/s. Dua Associates for Respondent No.3) ***** This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to declare that the acquisition proceedings vide Annexure-M and N dated and respectively in respect of property bearing Sy. No.94, of Kodihalli Village, Varthur Hobli, Bangalore South Taluk to the extent of 20 guntas, are lapsed/abandoned on account of non-utilisation of the land by the first respondent for more than four decades and etc; This Writ Petition is coming on for Hearing this day, the court made the following: O R D E R Heard the learned Counsel for the petitioners and the learned Senior Advocates, Shri Udaya Holla, appearing for the Counsel for the first respondent and Shri K.G.Raghavan, appearing for the third respondent, respectively. 2. The facts leading up to this petition are as follows: It is the claim of the petitioners that the property bearing Survey No.94 of Kodihalli village, Varthur Hobli, Measuring

4 4 about 20 guntas, was purchased by one J.Dhanraj Jain, under a registered sale deed dated The first petitioner herein is the widow of Dhanraj Jain and the other petitioners are his children. It is claimed that Dhanraj Jain was in possession of the said extent of land as on and had constructed a house with a compound wall and he was residing therein with his family. Jain is said to have died on The petitioners are his sole legal representatives, who have succeeded to his estate. It is also the case of the petitioners that the very land in Survey no.94 was notified for acquisition by the erstwhile City Improvement Trust Board (Hereinafter referred to as the CITB, for brevity), of which the Bangalore Development Authority (hereinafter referred to as 'the BDA', for brevity) is the successor-in-interest, for the formation of the HAL II Stage Residential Layout, under the provisions of the City of Bangalore Improvement Act, 1945 (hereinafter referred to as the 'CBI Act' for brevity) and a Preliminary Notification dated

5 and a Final Notification dated were issued in respect of the acquisition proceedings. However, the land in Survey No.94 and adjoining survey numbers were later found not required for the said purpose and as such, possession of the lands were never taken by the erstwhile CITB. It is in that background that late Dhanraj Jain is said to have applied for conversion of land use and sought for regularisation of unauthorised construction that had been put up. It transpires that the Assistant Commissioner for Prevention of Unauthorised Construction, Bangalore Taluk, by a Memorandum dated permitted conversion of the land for non-agricultural purposes and the construction put up by Dhanraj Jain was regularised by levying a penalty of `2,000/- per acre towards the conversion fine, in favour of Dhanraj Jain. 3. There were also proceedings under the Urban Land Ceiling Act,1976 (hereinafter referred to as the 'ULC Act' for brevity), in respect of the land in question, whereby the Special

6 6 Deputy Commissioner, Urban Land Ceiling, Bangalore, had issued an endorsement to the effect, that on an inquiry, it was found that the land in question was not covered under the provisions of the said Act. It is the case of the petitioners that a Preliminary Notification under Section 4(1) of the Land Acquisition Act, 1894 (Hereinafter referred to as the LA Act', for brevity), was issued by the CITB, Bangalore in the Mysore Gazette on , proposing to acquire 2 acres 7 guntas of land in survey No.94 of Kodihalli. Pursuant to which, a declaration under Section 6(1) of the LA Act, was issued on , which was duly published in the Official Gazette. It is pointed out that in terms of Section 19 of the CBI Act, CITB was required to execute any scheme within 7 years from the date of final notification, failing which, the scheme would lapse. It is the case of the petitioners that no action was taken by CITB towards the implementation of the scheme in respect of the land in question even up to the date of the petition. On the other

7 7 hand, from the date of purchase by Dhanraj Jain on , Dhanraj Jain and after him, these petitioners, who claim under him, have continued in possession and they were never deprived of such possession and since the scheme had lapsed as early as in the year 1971 and since to the knowledge of the petitioners, there were no further steps taken to take possession of the land in question, even if the acquisition proceedings were taken to their logical conclusion, the petitioners are highly aggrieved by the subsequent acts of the present respondent BDA in the following circumstances : 4. It is the allegation of the petitioners that the property, which was earlier assessed to tax by the HAL Sanitary Board, was later brought under the jurisdiction of the Bruhat Bengaluru Mahanagara Palike (hereinafter referred to as BBMP, for brevity), the second respondent herein and the petitioners had approached the BBMP, seeking registration of the khata in favour of the petitioners and since there was delay in processing the application, on an inquiry, it was learnt that the

8 8 BBMP had sought clarification from the BDA as regards the status of the land in question before effecting khata in favour of the petitioners and it is pursuant to these proceedings, that without a warning, the BDA through its demolition squad, had arrived at the premises of the petitioners early in the morning on and the petitioners were taken unawares of the huge task force, which landed with men and machinery and proceeded to demolish the residential property of the petitioners, after driving them out of the house and the entire building was razed to the ground within a matter of hours and the petitioners were left without any remedy whatsoever in respect of the high-handed action of the first respondent. This was widely publicized in the daily newspapers and within a week thereafter, the first respondent had published an advertisement, calling upon builders and developers to participate in a proposed public auction and the property in question was brought to sale by public auction, whereby the

9 9 third respondent claims to have purchased the property at the said auction. It is that which is sought to be questioned in the present writ petition. 5. Though in the first instance, the petitioners had questioned the notification for auction sale, since this court had passed an interim order holding that the auction, if any, shall be subject to the result of the writ petition and thereafter the third respondent having purchased the property at a public action that was held, an amended writ petition was filed incorporating the challenge to the auction sale. The learned Counsel for the petitioners would address this court at length insofar as the sequence of events and the manner in which the respondents have acted in depriving the petitioners of their property. 6. The learned Counsel for the petitioners would submit that it is not in dispute that the sale deed, under which the property was purchased by late Dhanraj Jain was executed

10 10 subsequent to the acquisition proceedings having been notified and the BDA was fully aware of the construction on the land as is evident from the Award, which is at Annexure F, wherein there is a specific finding to the effect that the Additional Land Acquisition Officer had inspected the land in question on and that there were two building measuring 45 x 25 and that the structures may have come into being after the Preliminary Notification, within one year from the date of the Award. Further, it is also recorded in the Award that Dhanraj Jain and Mithalal Jain were holding the land in question. Mithalal Jain was holding 1 acre and Dhanraj Jain was holding 20 guntas. The learned Counsel would therefore seek to draw sustenance from the said finding to hold that even from the year 1973, the BDA was fully aware of the possession of the petitioners or their predecessors in-title and by virtue of which, it could be said that the petitioners and their predecessors had exercised uninterrupted possession to the knowledge of the BDA and even assuming that the land in

11 11 question had vested in the BDA by virtue of the acquisition proceedings, since the petitioners and their predecessors had continued in possession undisturbed, it would lead to a position where they were in settled possession of the land in question and the law of the land is clear that even in respect of acquired land, if a person can establish settled possession, his possession cannot be disturbed, otherwise than under due process of law. In the case on hand, it would require the BDA to either initiate proceedings under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the 'KPPEUO Act' for brevity) or to file a civil suit for recovery of possession and in that view of matter, the petitioners having been summarily dispossessed in the high handed manner that the BDA had adopted, it should follow that the entire action of the BDA be declared as arbitrary and illegal and the possession of land should be restored to the petitioners. That apart from approaching this court, there is no other alternative remedy available to the petitioners.

12 12 7. In this regard, the learned Counsel would place strong reliance on several judgments of this court, especially, on the case of John B James vs. Bangalore Development Authority, 2001(1) Kar.LJ 364 and would draw attention to several paragraphs of the said judgment, to reiterate that if once settled possession has been demonstrated, the BDA would have no authority to disturb the possession of any person in settled possession and since the only manner in which the BDA could have recovered possession was as indicated therein, the action of the BDA would have to be declared as being illegal and appropriate directions be issued to put the petitioners in the same position as they were immediately preceding the writ petition. 8. On the other hand, the learned Senior Advocate, Shri Udaya Holla, appearing for the Counsel for the BDA would contend that the petitioners have no locus standi to prefer this writ petition. When the BDA is vested with the power under Section 38 of the BDA Act, to recover the land vested in it, if

13 13 it is occupied by any person, there is no illegality or irregularity that can be alleged against the BDA. Secondly, the petitioners claiming to have purchased the land after the land was duly notified for acquisition, there is no vested right in the petitioners in filing the present writ petition. Therefore, the petition would have to be dismissed in limine. Further, the settled possession that is sought to be claimed by the petitioners in the alternative would have to be established as a fact. The reference to the award and the indication that there were illegal structures on the land in question and that they were in the occupation of the predecessors of the petitioners, is not forthcoming, as is sought to be canvassed. The vague reference to any illegal structures or the occupation thereof by any Dhanraj Jain and the petitioners claiming as his legal representatives cannot be addressed in this writ petition and no findings of fact can be recorded on the basis of the reference to the findings in the award, which are passing references and cannot be said to be categorical findings in favour of either the

14 14 petitioners or late Dhanraj Jain. Therefore, the learned Senior Advocate would submit that at this remote point of time, when the petitioners are not in a position to challenge the acquisition, any indirect relief sought to be claimed of the petitioners being put back in possession of the land, can only be with reference to the acquisition proceedings and when the petitioners are not in a position to challenge the acquisition proceedings, no relief can be granted indirectly, when it cannot even be considered directly and hence, he would submit that the petition be dismissed. Insofar as the case law that is sought to be referred to, it is asserted that it would not aid the petitioners and on the other hand, several observations therein and the law laid down, would clearly be a bar to the present petition and therefore, would submit that the petition be dismissed. 9. While the Senior Advocate K.G.Raghavan appearing for the counsel for the third respondent would submit that the petitioners are not entitled to any relief, unless the petitioners elect the status under which relief is claimed. It is pointed out

15 15 that if the petitioners claim settled possession, the petitioners must first admit that the land stands vested in the State and it is then for them to aver and plead the fact that they have remained in continuous possession, adverse to the interest of the State or the BDA and then claim settled possession. If, on the other hand, the petitioners seek to question the acquisition itself, on the basis of a sale deed, the admitted position that the sale deed has been executed in favour of Dhanraj, under whom the petitioners claim, subsequent to the notification of the lands for acquisition, they are placing themselves in a position, which cannot be reconciled with the first stance on the basis of alleged settled possession. Therefore, the petitioners are between the devil and the deep sea, as it were, and are not in a position to manouvre on either side, as the inconsistent pleas would not enable them to make out any case at all. The learned Senior Advocate would submit that the wild allegations against the third respondent that the third respondent has been instrumental in provoking the BDA, to take the extreme step of

16 16 demolishing the property of the petitioners and thereafter, bringing the property to auction, is not supported by any material evidence on record nor are there any pleadings to that effect and hence, are unfair and are totally irrelevant. The third respondent has purchased the property at a public auction in the manner known to law. The motives behind the sale or the manner in which it has been conducted, are not subject to challenge through the petitioners, who cannot claim any vested right and in the light of the fact that they claim under a sale deed, which has been executed pursuant to the notification. In this regard, he would rely on a recent judgment of the apex court in the case of Vasanth Shreedhar Kulkarni vs. State of Karnataka,(2012) 1 SCC 138, where in relation to the very BDA Act, the apex court has reiterated the law laid down in Sneh Prabha vs. State of U.P., (1996)7 SCC 426, that any person who purchases land after publication of the notification under Section 4(1), does so at his or her own peril. The object of publication of the notification under Section 4(1) is notice

17 17 to everyone that the land is needed or likely to be needed for a public purpose and the acquisition proceedings point out an impediment to anyone to encumber the land acquired thereunder. It authorises the designated officer to enter upon the land to do preliminaries, etc. Therefore, any alienation of the land after the publication of the notification under Section 4(1), does not bind the Government or the beneficiary under the acquisition. On taking possession of the land, all rights, title and interest in land stand vested in the State under Section 16 of the Act free from all encumbrances and thereby absolute title in the land is acquired therein. This view having been reiterated in several other judgments, the apex Court has affirmed the settled position in law. The learned Senior Advocate would therefore submit that there is absolutely no ground on which the present petition can be sustained. 10. He would also place reliance on an unreported decision of this court in a writ petition in WP 45044/2011 dated , wherein, this court, insofar as possession of a

18 18 person who has acquired the land subsequent to a notification for acquisition is concerned, has again relied on the judgment of the apex Court in Sneh Prabha, supra, and the position having been reiterated, he would submit that there is no scope for the writ petition to be entertained. 11. By way of reply, the learned Counsel for the petitioners, would again submit that the mala fides are writ large in the action of the BDA and the candid submission by the learned Senior Advocate during his submissions on behalf of the BDA, that the entire record pertaining to the case is no longer available, is nothing but an indication of the gross suppression of facts by the BDA, as to the manner in which it has proceeded. It is because BDA has not proceeded in accordance with law that such a stand is taken. It is therefore evident that it is a fit case for this court to intervene as the petitioners have suffered at the hands of a statutory body, which has certainly acted beyond the scope of the Act, as is evident from the statement now made before the court that the

19 19 entire records pertaining to the acquisition are not available with the BDA. He would further submit that the proceedings also indicate that there was no formation of sites in respect of the land in question, for it is only if the land had been acquired and formed into sites, that it was possible for it to be brought to auction and since the entire parcel of land without there being any sites formed over it, has been summarily auctioned in favour of respondent no.3. The unholy nexus between respondent no.3 and the BDA is also apparent. Therefore, the petitioners being called upon to seek reliefs by recourse to a civil suit for damages, or otherwise, is redundant. It is an appropriate case where this court, in its extraordinary jurisdiction, should come to the aid of the petitioners, in seeking appropriate reliefs and the learned Counsel would again reiterate that the petitioners were in settled possession and the law is clear insofar as a person in settled possession being entitled to protection in law, notwithstanding that the land in

20 20 question may have been the subject matter of acquisition proceedings. 12. Given the above facts and circumstances and the state of the law, the admitted position that the land in question has been acquired by Dhanraj Jain, under whom the petitioners claim, subsequent to the notification of the land for acquisition, would straight away weaken the case of the petitioners in seeking the relief. As rightly contended by the respondents, the petitioners would not have any vested right in seeking to challenge the acquisition directly or indirectly. The very claim that they were in settled possession is a question of fact. This would have to be addressed by this court with reference to material evidence. The only evidence that is sought to be relied upon and from which sustenance is sought to be drawn, is the findings or the observations made by the Special Land Acquisition Officer, at Annexure-F to the writ petition. That by itself would not be sufficient to enable the petitioners to claim settled possession, as it is understood by this court, and as

21 21 indicated in the judgment of John B James, supra, and other decisions of this court as well as the apex Court. Therefore, to consider the relief which the petitioners claim, even if such relief is capable of being granted, is not possible, without a finding that the petitioners were in settled possession of the land in question as on the date of the cause of action sought to be made out in the present writ petition. Since the petitioners have been dispossessed from the land, the next question that would arise is the nature of relief that can be granted to the petitioners. This can at best be by way of damages, if at all, there are illegal acts on the part of the BDA, as there is no record placed before the court as to the BDA having acted in accordance with law. Even to arrive at the relief that can be granted to the petitioners, assuming that there have been illegal acts on the part of the BDA, since they have not been able to substantiate that the BDA had acted in accordance with law, except a presumption in favour of the BDA to that effect, to arrive at the quantum of damages, can only be on the basis of

22 22 facts that need to be averred and proved in considering the quantum of damages, which the petitioners may claim. In any event, that is not the relief that is sought for before this court. Therefore, even if the petitioners are in a position to establish that there has been illegal dispossession of the petitioners from the property, the only relief that they may possibly be entitled to in the BDA having overreached, if that can be found as a fact, is compensation in respect of such high-handed acts on the part of the BDA, if and when it is established. Therefore, this court would not be in a position to address that aspect of the matter at this point of time. Hence, it is an appropriate case where the petitioners ought to have sought for appropriate relief at the earliest point of time by recourse to a civil suit. If the law permits, such a remedy may still be available to the petitioners. It is therefore for the petitioners to work out their remedy, appropriately.

23 23 In the light of the above facts and circumstances, the petition is dismissed. Sd/- JUDGE nv