1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 04 Th DAY OF MARCH, 2014 BEFORE: THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY WRIT PETITION Nos.32482-32485 OF 2013 (LA-RES) CONNECTED WITH WRIT PETITION No.31832 OF 2013 (LA-RES) WRIT PETITION Nos.32941-32953 OF 2013 (LA-RES) IN W.P.Nos.32482-32485/2013 BETWEEN: 1. Vyalikaval House Building Co-operative Society Limited, A Co-operative Society, Registered under the provisions Of Karnataka Co-operative Societies Act, 1959, having its Registered Office at No.100, Sahakara Kunja, 6 th Cross, 11 th Main, Malleshwaram, Bangalore 560 003. Represented by its Secretary Sri. H. Srinivas, Presently having its office at:
2 No.62, 9 th Cross, Between 7 th and 8 th Main, 9 th Cross, Malleshwaram, Bangalore 560 003. 2. Sri. B.S. Vasudev, Aged about 52 years, Son of S.V.Subramanyam, No.230, Tank Bund Road, Subramanyanagar, Bangalore 560 021. 3. Smt. Vasantha, Aged about 55 years, Wife of Sri. Narase Gowda, Residing at No.119, Vyalikaval HBCS Layout, Nagawara/Thanisandra, Bangalore. 4. Sri. H.N. Venkatesh, Aged about 58 years, Son of Late H.S.Nagaraj, Residing at No.SF 7, Alpine View Apartment, II Main, Ganganagar, Bangalore 560 032. PETITIONERS (By Shri. K. Suman, Advocate) AND: 1. State of Karnataka, Vidhanasoudha,
3 Vidhana Veedhi, Bangalore, By its Chief Secretary. 2. The Principal Secretary, Revenue Department, Government of Karnataka, M.S.Building, III Floor, Visveswaraiah Centre, Bangalore 560 001. 3. The Deputy Commissioner, Bangalore District, Bangalore. 4. The Special Land Acquisition Officer, Bangalore North Taluk, Podium Block, Visveswaraiah Tower, Bangalore 560 001. 5. Sri. V. Nanjappa, Son of Late R. Venkatappa, Aged about 70 years, Residing at Nagavara Village, Kasaba Hobli, Bangalore North Taluk, Represented by his GPA Holder Sri. Chandrakanth P Sahu, Son of Late Purushothama Sahu. 6. Smt. Venkatamma, Aged about 65 years, Residing at Govindapura, Arabic College Post,
4 7. Sri. Narayanappa, Aged about 53 years, Son of Late Appoji (Appajappa), Residing at Govindapura, Arabic College Post, 8. Sri. Muniyappa, Aged about 45 years, Son of Late Appoji (Appajappa), Residing at Govindapura, Arabic College Post, 9. Sri. Mariyanna, Aged about 49 years, Son of Late Kalappa, Residing at No.652, Munivenkatappa Layout, Nagawara, Arebic College Post, 10. Sri. Ananda Murthy, Aged about 64 years, Son of Late Kalappa, Munivenkatappa Layout, Nagawara, Arebic College Post, 11. Sri. Srinivasa, Aged about 32 years, Son of Late Sadananda, Residing at No.136,
5 Opp: Venugopala Swamy Temple, Nagawara, Arebic College Post, 12. Sri. James @ James Raju Reddy, Son of Late Chowrappa, Aged about 53 years, Residing at Nagavara Village, Arabic College Post, RESPONDENTS (By Shri. H. Kantharaj, Additional Advocate General for Shri. H. Anantha, Government Pleader for Respondent Nos. 1 to 4 Shri. C.M. Nagabhushana, Advocate for Shri. H. Rajanna, Advocate for proposed Respondent Nos. 5 and 12 Shri. Jayakumar S Patil, Senior Advocate for Shri. R.S.Hegde, Advocate for Proposed Respondent Nos. 6 to 11) These Writ Petitions filed under Articles 226 and 227 of the Constitution of India praying to quash the illegal orders dated 4.6.2013 issued by the respondents 1 and 2 i.e., Annexure-A1 and the order dated 29.6.2013 passed by the Deputy Commissioner/respondent No.3 i.e., Annexure-A2 as wholly arbitrary, illegal and unjust. IN W.P.No.31832/2013 BETWEEN: Smt. E. Akkamma, Wife of Late E. Subbanna, Aged about 84 years, Residing at Kothacheravu, Ananthapur District,
6 Andhra Pradesh. Represented by her son and GPA Holder Sri. E. Muralidhar, Son of Late E. Subbanna, Aged about 51 years, Residing at B-302, Krishna Diamond Apartments, A Block, Sahakara Nagara, Bangalore 560 092. PETITIONER (By Shri. B.S. Radhanandan, Advocate) AND: 1. State of Karnataka, Department of Revenue, Vidhana Soudha, Bangalore 560 001, Represented by its Secretary. 2. The Deputy Commissioner, Bangalore Urban District, Bangalore 560 001. 3. The Assistant Commissioner, Bangalore North Sub-Division, Kandayabhavan, K.G.Road, Bangalore 560 001. 4. The Tahsildar, Bangalore North Taluk, Bangalore 560 001. 5. The Special Land Acquisition Officer,
7 3 rd Floor, Podium Block, V.V. Towers, Bangalore 560 001. RESPONDENTS (By Shri. H. Kantharaj, Additional Advocate General for Shri. H. Anantha, Government Pleader ) This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash the impugned order dated 4.6.2013 vide Government Order at Annexure-P passed by first respondent and quash the impugned order dated 29.6.2013 vide Annexure-Q passed by the second respondent. IN W.P.Nos.32941-32953/2013 BETWEEN: 1. Sri. S. Sateesh Chandra, Aged about 37 years, Son of L. Shanthakumar, Residing at No.318, 8 th Main Road, Vyalikaval HBCS Layout, Nagavara, 2. Sri. B. Vijaya Raj, Aged about 40 years, Son of Late C.P. Basavaraju, Residing at No.145, NAGADEV, 3 rd Cross, Vyalikaval HBCS Layout, Nagavara,
8 3. Sri. L. Prasad, Aged about 50 years, Son of Late Dr. S. Linganna, Residing at No.168/30, 4 th Main Road, Vyalikaval, Bangalore 560 003. 4. Sri. D. Subbaiah, Aged about 65 years, Son of Late Doddanna, Residing at No.6-C-327, 6 th Cross, OMBR Layout, Banaswadi, Bangalore 560 040. 5. Smt. M. Pushpa, Aged about 54 years, Wife of Sri. D.Subbaiah, Residing at No.6C-327, 6 th Cross, OMBR Layout, Banaswadi, Bangalore 560 040. 6. Sri. Arun Kirshnappa Nikam, Aged about 37 years, Son of Krishnappa J. Nikam, No.94, II Main, Vyalikaval HBCS Layout, Nagawara, 7. Sri. Atmakuri Madhusudhan Rao, Aged about 35 years,
9 Son of A. Koteshwara Rao, Flat No.B5-08, Sri Hari Residency, 9 th Main, VHBCS Layout, Nagawara, 8. Sri. Shivakumar Radhakrishnan Nair, Aged about 42 years, Son of M.N. Radhakrishnan Nair, Residing at No.FF-16, Balaji Nest Apartment, Basappa Layout, HBR Kalyananagar, Bangalore 560 043. 9. Sri. Gudi Venkata Ramana, Aged about 38 years, Son of G. Narayana Rao, Residing at No.576, VHBCS Colony, IAC Post, Veerannapalya, Nagawara, Hebbal, Bangalore. 10. Sri. G. Prakash, Aged about 40 years, Son of T. Govindappa, Residing at No.530, VHBCS Layout, 14 th Cross, Veerannapalya, Nagawara, 11. Sri. Jakki Giridhar,
10 Aged about 40 years, Son of Jakki Chinna Veeraiah, Residing at No.573, VHBCS Layout, Veerannapalya Main Road, 12. Sri. M. Ashok Kumar, Aged about 48 years, Son of D. Manche Gowda, Residing at No.42, 13 th Cross, Hanumaiah Layout, Sanjaynagar, Bangalore 560 094. 13. VHBCS Layout Residents Welfare Association, Nagawara, Bangalore, Represented by its Secretary, Sri. Ramesh Bhat, Aged about 36 years, Son of Panduranga Bhat. PETITIONERS (By Shri. K. Suman, Advocate) AND: 1. State of Karnataka, Vidhanasoudha, Vidhana Veedhi, Bangalore, By its Chief Secretary. 2. The Principal Secretary,
11 Revenue Department, Government of Karnataka, M.S.Building, III Floor, Visveswaraiah Centre, Bangalore 560 001. 3. The Deputy Commissioner, Bangalore District, Bangalore. 4. The Special Land Acquisition Officer, Bangalore North Taluk, Podium Block, Visveswaraiah Tower, Bangalore 560 001. RESPONDENTS (By Shri. K. Kantharaja, Additional Advocate General for Shri. H. Anantha, Government Pleader) ***** These Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to quash the illegal order dated 4.6.2013 issued by the respondent 1 and 2 ie., Annexure-A1 and the order dated 29.6.2013 issued by the Deputy Commissioner/Respondent no.3 i.e., Annexure-A2 as wholly arbitrary. These petitions, having been heard and reserved on 26.2.2014 and coming on for Pronouncement of Orders this day, the Court delivered the following:-
12 O R D E R These petitions are heard and disposed of together having regard to the common facts and circumstances. Re. WP 32482/2013: The first petitioner is a society registered under the provisions of the Karnataka Co-operative Societies Act, 1959 (Hereinafter referred to as the KCS Act, for brevity). It is engaged in the formation of residential house sites for the benefit of its members. It has formed various residential layouts in and around Bangalore City. The present petition pertains to the Nagawara layout. It is said that it has formed a full fledged layout in an area of about 98 acres and 21 guntas of land, in terms of the Scheme approved by the Government of Karnataka and pursuant to acquisition proceedings initiated by the State government in respect of about 165 acres and 30 guntas of land comprised in lands of Nagawara village, Bangalore North taluk. It transpires that several of the land owners, whose lands had been acquired as aforesaid, are said to have challenged the
13 acquisition proceedings in various writ petitions before this court, in so far as it related to their lands. The said petitions were allowed in the light of the decision in HMT House Building Coop. Society v. Syed Khader, ILR 1995 Kar 1962; Those petitions were allowed by a learned single judge and the said decision was affirmed by a Division Bench of this court, in appeal and was also confirmed by the Apex Court in a further appeal. It is however, the petitioners case that the decision was confined to the extent of the land of the several petitioners totaling to an extent of 52 acres and 30 guntas and did not extend to the entire area of 165 acres and 30 guntas comprising the layout. It is emphasized that the judgments have specifically restricted the scope of the decision to the lands of the particular petitioners. It is stated that there was an enquiry conducted by the Joint Registrar of Co-operative Societies, under Section 64 of the KCS Act in respect of certain irregularities as regards the induction of ineligible members and other lapses. And that the Petitioner Society had submitted a compliance report in response to
14 observations made against the Society therein. This was said to have been accepted by the said authority and it is claimed that the Society was absolved of wrong doing. In view of the Society having been deprived of the 52 acres and 30 guntas of land by virtue of the adverse judgments referred to, the contiguity of the layout was said to have been affected and hence the Society is said to have approached the State Government with a plea to re-acquire the said land, having regard to the Society cleansed its affairs and no longer being disentitled to the same. It is said that in view of the favourable report and recommendation in favour of the Society by the Joint Registrar of Co-operative Societies, the State government is said to have issued a fresh notification under Section 4(1) of the Land Acquisition Act, 1894, (Hereinafter referred to as the LA Act, for brevity) dated 28.7.1999. This is said to have been challenged by several of the land owners, though the said petitions were dismissed and even affirmed in appeals to a Division bench, the State Government, allegedly at the instance of influential persons,
15 had withdrawn from the acquisition proceedings. This was challenged by the petitioner by way of writ petition in WP 27205/2001, which is said to have been allowed by an order dated 9.3.2004. The same was affirmed by a Division bench in an appeal in WA 2532/2004 and connected appeals. However, in a further challenge before the Supreme Court, the judgment of this court in the above appeal was set aside, in B. Anjanappa and others vs. Vyalikaval House Building Co-operative Society Limited and others, Civil Appeal No.1930/2012, in the following terms : In the result, the appeals are allowed. The impugned judgment as also the order passed by the learned Single Judge are set aside and the writ petition filed by respondent No.1 is dismissed. If respondent No.1 is in possession of the acquired land or any portion thereof, then the same shall be returned to the concerned landowners within a period of two months from today. This direction shall apply not only qua the appellants but other landowners who may not have filed writ appeals or the special
16 leave petitions, may be due to poverty, illiteracy or ignorance. However, it is made clear that the above mentioned directions shall not apply to such of the landowners who have withdrawn the special leave petitions. If any of the landowners has received compensation from the State, then the latter shall be free to recover the same in accordance with law. Respondent No.1 is directed to submit a report to this court within three months showing compliance of the aforementioned directions. The Registry shall then list the matter before the Bench. It is stated that pursuant to the above judgment, the Society has filed the required compliance report in the Supreme court, in relation to the said 52 acres 17 guntas of land which was the subject matter of the second acquisition proceedings. The said report, dated 7.2.2012 is pending consideration and that the Supreme Court is yet to pass final orders on the same even as on date.
17 In the meanwhile the State government has, by an order dated 4.6.2013, directed the entire lands, the total extent of 165 acres and 30 guntas acquired for the benefit of the society originally, and of which only an extent of 53 acres and 20 guntas was the subject matter of proceedings before the Supreme Court, be returned to the land owners. This is on an interpretation sought to be placed on the directions issued as aforesaid by the Supreme Court. It is that which is under challenge. Re: WP 31832/2013: The petitioner is said to be the owner of sites bearing no.1 to 8, 9NP & 9SP, now bearing BBMP Khatha nos. 402/ 1 to 10 of Vyalikaval House Building co-op Society layout, Nagawara village, Bangalore North taluk. It is the case of the petitioner that the said sites are formed by the Society, the petitioner in the first of these petitions, out of land acquired for its benefit. The petitioner is aggrieved by the very Order dated 4.6.2013 of the State government, whereby the petitioner is bound to handover possession of the said sites to the erstwhile land owners, though
18 according to the petitioner, the Supreme court never intended that its order extend to lands which were not the subject matter of the proceedings before it. Re. WP 32941-32953/2013 The petitioners are said to be purchasers of sites in the Vyalikaval House Building Co-operative Society Layout, formed at Nagawara village, Bangalore North Taluk. Some of whom are members of the Vyalikaval House Building Co-operative Society, while others are said to be purchasers of the sites from erstwhile members of the Society. They are all aggrieved by the Order dated 4.6.2013, which would require them to surrender possession of their properties to erstwhile land owners by virtue of the same. 2. The State government seeks to justify its action by drawing attention to the observations made by the Apex court in earlier cases relating to acquisition of land for the benefit of house building co-operative societies, including the present society, in an earlier case, thus :
19 It is contended that it is an admitted fact that preliminary notification under Section 4(1) of the LA Act, bearing No.LAQ(1)CR455/84-85 dated 22.12.1984 and the final declaration under Section 6(1) of the LA Act bearing No.RD 183 AQB B2 dated 21.02.1986, were issued to acquire 165 acres 30 gutnas at Nagavara, Bangalore North. Though the layout plan was approved by the Bangalore Development Authority (BDA) vide order No.BemAPra/NaYoSa/PL-32/2003-04 dated 30.09.2003, later, by order dated 30.03.2005, the BDA has withdrawn the said layout approval plan. The apex Court in the case of Vyalikaval House Building Co-operative Society Vs. Chandrappa and others, AIR 2007 SC 1151, by order dated 02.02.2007, had made it clear that the notification issued for the acquisition of land for the aforesaid society is a tainted one and it does not stand the test of law. Similarly, in the case of HMT House Building Co-operative Society Vs. M. Venkataswamappa and others and connected cases, (1995) 3 SCC 128 along with case in Vyalikaval House
20 Building Co-operative Society Limited Vs. Narayana Reddy and others decided on 21.02.1995, in S.L.P.No.12104/2007, 12600/2003, 13150-80/1991, 18297-300/1991, while disposing the said Appeals, the apex court in has observed thus: In the Appeals arising out of SLP(c) Nos. 11482-90/1991 after the dismissal of the Appeals a direction has been given that as a result of the quashing of the land acquisition proceedings including the notifications in question, the possession of the land shall be restored to the respective land owners irrespective of the fact whether they had challenged the acquisition of their lands or not. A further direction has been given that on restoration of the possession to the land owners they shall refund the amounts received by them as compensation or otherwise in respect of their lands. We issue a similar direction even in this case. The Petitioner, the Respondents and the State Government including all concerned authorities/persons shall implement the aforesaid directions at an early date. Since the apex court has quashed the acquisition notifications in entirety and direction was issued to the State Government also to implement the orders to give back the lands to the land owners at an early date, the Law Department by its
21 opinion dated 17.05.2008 has opined that the case of Vyalikaval House Building Co-operative Society Vs. Chandrappa and others and Vyalikaval House Building Co-operative Society Vs. Narayana Reddy and others are also applicable to the land owners who have not challenged the acquisition proceedings and they were to be returned the lands, which were acquired. It is contended that since the apex court in the case of Vyalikaval House Building Co-operative Society Vs. Narayana Reddy and others, in categorical terms, has stated that the State Government also shall implement the directions issued by the apex court, the respondent has passed the impugned order to abide by the directions issued by the apex court. The matter was heard at length and the point at issue was narrowed down to addressing the judgment of the Supreme Court and the directions issued therein, which has been extracted herein above, to either sustain the impugned government order, which is said to have been issued in purported implementation of the judgment of the Supreme Court, or to quash the same as being an
22 inaccurate and untenable analysis made and conclusions drawn, as to the scope and intent of the judgment of the Supreme Court. 3. It was also noticed that the petitioner Society had in compliance with the judgment of the Apex court, is said to have filed a compliance report of having handed over possession of land acquired by the State for its benefit, and which was the subject matter before the court, to the respective land owners. And that the respondents have filed objections to the said report before the Supreme court and that the Court is yet to pass final orders on the compliance report. If the report filed by the Society should be accepted by the Supreme Court- and the matter is finally closed, it would not be possible for the State to pursue the impugned Order, as it would then be evident that it was misconceived. Consequently, the State government shall necessarily await the opinion of the Supreme Court as to the claim of the petitioner - Society in having complied with the directions issued earlier. The impugned order is therefore pre-mature.
23 The petitions are allowed on the above reasoning. The impugned Annexures, in the respective petitions, are quashed. Sd/- JUDGE nv*