IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR.JUSTICE ANAND BYRAREDDY. WRIT PETITION No.31892/2009 (LA-BDA)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 9 TH DAY OF OCTOBER 2012 BEFORE THE HON BLE MR.JUSTICE ANAND BYRAREDDY WRIT PETITION No.31892/2009 (LA-BDA) C/w.W.P.Nos /2009 (LA-BDA), W.P.Nos /2002 (LA-BDA) & R.F.A.No.259/2010 W.P.No.31892/2009 : BETWEEN: Society of Sons of the Immaculate Conception India, (Regd.Charitable Society, S.No.379/89-90) Nirmalaram, S.O.S. (Mt.St.Joseph) P.O. Bangalore , Represented by its President Further,.Mathew Varghese, Aged about 39 years, S/o Mathew... Petitioner ( By Sri Shanmukhappa, Advocate ) AND: 1. Additional Special Land Acquisition Officer,

2 2 Bangalore Development Authority, T.Chowdaiah Road, Kumara Park West, Bangalore Bangalore Development Authority, Rep. by its Commissioner, T.Chowdaiah Road, Kumara Park West, Bangalore State of Karnataka, Department of Housing and Urban Development, Represented by its Secretary Vidanasoudha, Bangalore Special Deputy Commissioner, Bangalore South, Bangalore Respondents ( By Sri Udaya Holla, Sr.Counsel for Sri Basavaraj V. Sabarad, Advocate For R-1 and 2 and Sri K.S.Mallikarjunaiah, HCGP for R-3 & 4 ) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the award notice purporting to be dated vide Annexure-a on the alleged ground that the land comprised in Sy.No.87/8, measuring 5 acres of Kothanoor village has been acquired by the R1 and etc.,

3 3 W.P.Nos /2009 : BETWEEN : 1. Smt.Susheela N. Reddy, W/o late C.Narayan Reddy Aged about 58 years, Susheela Narayana Nilaya Adjacent to Meenakshi Temple, 13 th KM, Bannerghatta Road, Bangalore N.Swaroop Kumar, S/o late C.Narayan Reddy Aged about 35 years, Susheela Narayana Nilaya Adjacent to Meenakshi Temple, 13 th KM, Bannerghatta Road, Bangalore N.Shashank Kumar, S/o late C.Narayana Reddy, Aged about 26 years, Susheela Narayana Nilaya Adjacent to Meenakshi Temple, 13 th KM, Bannerghatta Road, Bangalore Muni Reddy, S/o Late Channappa Aged about 61 years, No.2, Next to Govt.Hospital, Arakere, IIM Post, Bannerghatta Road, Bangalore Petitioners ( By Sri G.Krishna Murthy, Advocate )

4 4 AND : 1. The State of Karnataka, Urban Development Department M.S.Building Dr.Ambedkar Road, Bangalore Rep.by its Secretary. 2. The Bangalore Development Authority, Dr.T.Chowdaiah Road, Kumara Park West, Bangalore Rep.by its Commissioner. 3. Special Land Acquisition Officer, Office of the Bangalore Development Authority, Dr.T.Chowdaiah Road, Kumara Park West, Bangalore Respondents ( By Sri Udaya Holla, Sr.Counsel for Sri Basavaraj V. Sabarad, Advocate For R-2 and 3 and Sri K.S.Mallikarjunaiah, HCGP for R-1 ) These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India praying to quash the notification dated vide Annexure-N withdrawing the de-notification dated in respect of the schedule property and etc., W.P.Nos /2002 : BETWEEN : 1. K.Krishnam Raju, S/o late Muniswamy Raju,

5 5 Aged about 65 years, R/o No.41, 5 th Temple Street, 15 th Cross, Adjacent to Subbamma Kalyana Mantap, Malleshwaram Bangalore-3. Since deceased, by LRs: 1A) K.Srinivasa Murthy, S/o late K.Krishnam Raju, Aged about 42 years, 1B) K. Balaji, S/o late K.Krishnam Raju, Aged about 35 years, Both are R/o. No.41, 5 th Temple Street, 15 th Cross, Adjacent to Subbamma Kalyana Mantap, Malleshwaram Bangalore Smt.Lakshmamma W/o K.Krishnam Raju, Aged about 56 years, R/o. No.41, 5 th Temple Street, 15 th Cross, Adjacent to Subbamma Kalyana Mantap, Malleshwaram Bangalore Petitioners ( By Sri Jayakumar S. Patil, Sr.Counsel) AND : 1. The State of Karnataka, By its Secretary to the

6 6 Department of Urban Development M.S.Building Dr.Ambedkar Road, Bangalore Rep.by its Secretary. 2. The Bangalore Development Authority, By its Commissioner, Dr.T.Chowdaiah Road, Kumara Park West, Bangalore The Town Planning Member, Bangalore Development Authority, Dr.T.Chowdaiah Road, Kumara Park West, Bangalore The Special Land Acquisition Officer, Bangalore Development Authority, Dr.T.Chowdaiah Road, Kumara Park West, Bangalore Respondents ( By Sri K.s.Mallikarjunaiah, HCGP for R-1, Sri Udaya Holla, Sr.Counsel for Sri Basavaraj V. Sabarad, for R-2 ) These Writ Petitions are filed under Articles 226 & 227 of the Constitution of India praying to declare that the Bangalore Development Authority Act, 1976 is unconstitutional, ultravires and void abinitio and therefore unenforceable for lack of the assent of the President and etc.,

7 7 RFA.No.259/2010 : BETWEEN : The Commissioner Bangalore Development Authority, Bangalore... Appellant ( By Sri Basavaraj V. Sabarad, Advocate ) AND : Smt.Lakshmamma, W/o Krishnam Raju, Aged about 62 years, R/o No.12, New No.39 4 th Temple Road, 15 th Cross, Malleswaram, Bangalore Respondent ( By Sri Somanagowda S. Patil, Advocate for C/R) This Appeal is filed under Section 96 r/w. Order 41 Rule 1 of CPC against the judgment and decree dated passed in O.S.No.401/2007 on the file of the IX Addl.City Civil and Sessions Judge, Bangalore, decreeing the suit for declaration and permanent injunction. These Writ Petitions and RFA are coming on for preliminary hearing `B group this day, the Court made the following:

8 8 O R D E R These Writ Petitions and the Regular First Appeal coming on for preliminary hearing in the `B group, with the consent of the learned Counsel on both sides, the petitions and appeal are disposed of having regard to the facts and circumstances. 2. Heard Sri Shanmukhappa, learned counsel appearing for the petitioner in W.P.No.31892/2009, Sri G.Krishna Murthy, learned counsel appearing for the petitioners in W.P.Nos /2009, Sri Jayakumar S. Patil, learned Senior Advocate appearing for the counsel for the petitioners in W.P.Nos /2002, Sri Udaya Holla, learned Senior Advocate appearing on behalf of Sri Basavaraj V. Sabarad, learned counsel appearing for Bangalore Development Authority in all these writ petitions and Sri K.S.Mallikarjunaiah, learned Government Pleader appearing for the respondent-state.

9 9 3. The common ground on which these petitions are filed is that the petitioners are the owners of different sub-divisions of the land bearing Survey No.87 of Kothanur Village, Uttarahalli Hobli, Bangalore South Taluk. It is stated that the land in Survey No.87 was government land, measuring totally about 67 acres 6 guntas and was described in the records as Sarakari Muffat kaval or gomal land. The said land was divided into eight sub-numbers as 87/1 to 87/8 favouring several holders on which is indicated hereinbelow in a tabular form : Sy.No. Extent 1 87/ As per RTC Sarakari Muffath Kaval 2 87/ R.Ramaiah S/o Ranganna 3 87/ Armugam Mudaliar 4 87/ Narasogi Rao 5 87/ Bar Bar Venkataswamy 6 87/ N.Mada Rao 7 87/ K.Anantha Rao 8 87/ Vasanthapura Vallabai Ramaswamy

10 10 However, it transpires that the Bangalore Development Authority (BDA) sought to acquire these lands for the purposes of formation of the Jayaprakash Narayan Layout by issuing a Preliminary Notification dated under Section 17 of the Bangalore Development Act, 1976 (hereinafter referred to as `the BDA Act for short), duly published in the Official Gazette on Significantly, in the preliminary notification, the land was shown as Survey No.87, totally measuring 57 acres 11 guntas, without indicating the sub-numbers which were already allotted as reflected from the records and was described as `Sarakari Muffat kaval. Therefore, it was evident that none of these petitioners were notified in respect of the land which was sub-divided from out of Survey No.87. Thereafter, a Final Notification dated was issued under Section 19 of the BDA Act and was

11 11 duly published in the Official Gazette on the same day. This was in pursuance of the Deputy Commissioner by his letter dated having informed the Bangalore Development Authority that the land in Survey No.87 was sub-divided as 87/1 to 87/8 and was under the ownership of several persons, namely the petitioners herein and this was in response to a clarification sought by the Bangalore Development Authority to find out as to whether the land in Survey No.87 was government land or otherwise, Notwithstanding the same, the final notification was issued subsequently. 4. The petitioners in Writ Petition Nos /2009 had filed Writ Petition Nos /1995 before this Court challenging the said notifications on the ground that they had not been notified of the acquisition and that there was a delay

12 12 of six years in issuing the final notification and the entire acquisition was not preceded by any sanction as required under Section 18(3) of the BDA Act. This Court had ultimately quashed the final notification by an order dated on the footing that there was no sanction under Section 18(3) of the BDA Act and the BDA was directed to hand over possession to the land owners till acquisition was completed in accordance with law. Liberty was reserved to the authorities to proceed with the acquisition from the stage of considering the enquiry report and directed to complete the acquisition proceedings within one year from the date of order of this Court, in accordance with law. Since there was partial relief granted to the petitioners, the same was challenged in Writ Appeal Nos & 10023/1996 in respect of the liberty

13 13 being reserved to the respondent-authorities to proceed with the impugned acquisition from the stage of considering the report. In the Writ Appeals, an interim order was granted pending disposal of the writ appeals. It is subsequently that on , a final notification was issued under Section 19(3) of the BDA Act in respect of 7 acres 30 guntas, by noting that there was a direction for maintenance of status quo in respect of 16 acres out of the land belonging to the said petitioners. The Writ Appeals were dismissed by the Division Bench of this Court on by observing that the view of the learned Sing Judge that the sanction as required under Section 18(3) of the BDA Act is mandatory and that the contention of the petitioners that their names were not indicated, would be considered at the time of issuing a fresh final notification. But, however, on , the 1 st respondent in exercise of the

14 14 power vested under Section 48(1) of the Land Acquisition Act, issued a notification withdrawing the subject properties from acquisition proceedings initiated as per the Preliminary Notification dated , and Final Notifications dated and Significantly, it is pointed out that even in the notification issued under Section 48(1) of the Land Acquisition Act, the land is again described as 87, albeit the names of above petitioners were shown without indicating the sub-divisions of the land. Thereafter, yet another Final Notification was issued on while withdrawing the notification, de-notifying the lands. 5. In so far as Writ Petition Nos.377 & 378/2002 are concerned, the petitioners have also challenged the notifications in the year 1996 in Writ Petition No.34015/1996 and Writ Petition

15 15 No.4/1997, and same were simultaneously disposed of on the ground of delay and laches. In so far as the petitioner in Writ Petition No.31892/2009 is concerned, they had challenged the very same notifications in Writ Petition No.8783/1995 which was again dismissed on the ground of delay and laches. Subsequently, the 1 st respondent had issued a Final Notification dated in respect of 28 acres 30 guntas again showing the land in Survey No.87 without indicating the sub-divisions. This is possibly excluding the land which was de-notified in so far as the petitioners in Writ Petition Nos /2009 were concerned. 6. Apart from the Final Notification dated , the 1 st respondent issued a notification seeking to withdraw the earlier de-notification dated

16 , and purportedly seeking to revive the acquisition proceedings which was however not gazetted. The petitioners in Writ Petition Nos /2009 had therefore requested for withdrawal of the notifications withdrawing the de-notification. Such a request was made to the Hon ble Chief Minister s Secretariat. A report is said to have been called for from the Commissioner, Bangalore Development Authority, who in turn, in his report dated had detailed the sordid course of events that had taken place as aforesaid and had recommended that the lands notified may be dropped from acquisition. The Government, in turn, on had directed the matter to be placed before a committee constituted by it to recommend whether or not the lands could be dropped from acquisition proceedings. In the meanwhile, one of the petitioners requested the Chief Minister to consider the request

17 17 to withdraw the notification under which denotification was withdrawn and the Chief Minister was also of the opinion that the lands could be dropped from the acquisition proceedings. It is pursuant to these sequence of events that the present order is passed by the Bangalore Development Authority which is sought to be challenged in these petitions. 7. Incidentally, in so far as the vendors of the petitioner in Writ Petition No.31892/2009 is concerned, they had also challenged the acquisition proceedings independently in Writ Petiton No.34796/1996 & connected matters, which were all allowed in part, holding that the final notification was quashed while keeping alive the preliminary notification. The petitioners therein being aggrieved, had filed Writ Appeal Nos /1998. A

18 18 Division Bench of this Court by its order dated 7 th January 2005, proceeded to quash the Final Notification, as well as the Preliminary Notification in relation to the lands of the appellants therein are concerned. That has attained finality. 8. In so far as these petitions are concerned, it is not in serious dispute that in the Preliminary Notification, as well as in the Final Notification, the land in Survey No.87 has been notified without indicating the sub-divisions or the names of individual holders of the sub-divisions. This defect is not capable of correction at this point of time. At this juncture, Shri Udaya Holla, learned Senior Advocate contends that, if at all the Final Notification is quashed on the ground that the acquisition proceedings are defective on account of incorrect description of the lands in question, the authorities

19 19 be permitted to recommence the proceedings from the stage of calling for a report, and that any correction in so far as sub-divisions and inclusion of the names of the individual holders of the lands could be incorporated at the stage of notification and that would cure the defect, if any, as the lands are required for a public purpose and if the proceedings are quashed at this point of time, it will affect the public at large. Such a request is made in the face of a Division Bench of this Court having taken a view that partially quashing the acquisition proceedings was not proper. 9. By that token of reasoning, these petitions have to be allowed on the ground that neither the sub-divisions of the land in Survey No.87 were indicated nor the names of individual holders who had all purchased the lands, much prior to the issuance of the notifications and whose names were

20 20 reflected in the revenue records had not been indicated. It is only by hind sight that steps have been taken for course correction from time to time in the acquisition proceedings which was again flawed and invalid. Therefore, the inexplicable method of withdrawing a de-notification and seeking to issue a further notification, is a practice which is unacceptable and cannot be sustained as it is clearly illegal and illogical. Therefore, the petitions are to be allowed on the ground that the owners of the lands have not been notified at any point of time. Even after the defect is brought to the attention of the authority, it has continued to proceed on such a defective basis. Therefore, the Writ Petitions are allowed and the impugned Annexures in the respective petitions are quashed.

21 Incidentally, it is brought on record during the pendency of the proceedings that in so far as the petitioners in Writ Petition Nos /2009 are concerned, that the petitioners therein had grown eucalyptus which was ready for harvest and the respondents had proceeded to invade the lands and had cut and removed the trees. According to the petitioners, the value of the timber that was sold by such means was in excess of Rs.20,00,000/-. However, the BDA has disputed the same and has furnished a report to show that the value of the timber was only Rs.1,90,000/-. This is a dispute which could be resolved amicably through mediation. Therefore, while disposing of these petitions, in so far as the above dispute is concerned, as a special case, the same is referred to Mediation. The counsel for the petitioner and the petitioner and the counsel for the Bangalore Development Authority are directed

22 22 to appear before the Mediation Centre, Bangalore, on 16 th November The office is directed to dispatch the papers pertaining to Writ Petition No /2009 to the Mediation Centre, Bangalore. In so far as RFA.No.259/2010 is concerned, the same arises out of a civil suit filed in O.S.No.401/1997 before the Court of IX Addl.City Civil & Sessions Judge, Bangalore, by one of the petitioners. The same has been decreed by a judgment and decree dated 2 nd November 2009, declaring that the lands were not the subject matter of acquisition proceedings and that the plaintiffs were the owners of such property. The same is under challenge in the said RFA filed by the BDA.

23 23 Since the writ petitions are allowed, the said appeal does not survive for consideration and accordingly, the same is dismissed. Sd/- JUDGE *bk/-