Bheemachandra Education Trust vs State Of Karnataka Department Of ... on 30 July, 2008

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Karnataka High Court

Bheemachandra Education Trust vs State Of Karnataka Department Of ... on 30 July, 2008

Sri Jayakumar S Patil, Sr. Counsal fur Mls King & Patridge for R3; Sti B R Srinivasagowda, Adv. for R4-,5) This Writ Petition is ﬁled under mzzaxzzv 'er ihe.C6n£ti_t1iti_on' praying to quash the preliznimry notif1cau'an'--_ a;mexnzr:j{Q:

as aiso the ﬁnal notiﬁcation dated 5.7.2{}O3x. tiiﬁ 4"' respondent in so far as ii relates £01116-.V.petiti6r=cr':z, Iaﬂgi extent 2 ' mentioned therein, etc. This Writ Petition comii;g_ on Heéfiiig tﬁis day, the Court made the following: " * ; V. L %%jj0Rm:

Petiti<A§11c:_r'Tn1st' haé tiuashing the Preliminary Notification dated 29.;_:m()3 - Q and "$130 the ﬁnal notifuzation am: 5.7.2003 . éénzsxutc issaxcii ﬂ1c4mfé§pondent in so far it relatas to the pctitioner's iénakqtiie "¢£:;'_:ac:e 14 gtmtas comprised in Sy.No.255 oflimgeri _ Viﬂagaﬁad Scum Taluk mentioned as 'A' schedule and the latiztﬁiaastuing I aere 13 guntas comprised in Sy.No.2SS of Kengeri Hobii, Bangalore Smith Taiuk mentioned as 'B' schedule which .._ *c§§asVgot regstered in the name of petitioner on 23.16.2002 with the V V ' ' A x u " boundaries mentioned therein.

5?"

obtaining perrmission from the Government and pursuant to the_ '(if_ sale dated 25.12.2000, petitioner purchased the land moaommo:'2.25..oo§oo A" " Sy.No.25S and got it registered in its name in t-1'.~1éoﬁ§qc of mo. Kengeri ﬁat valuable consideration through itoooooo oooxy and Raju, the khathedars ofthc land in oooooo. oo '23,_1u.2pi23 E, " A the sale deed. The petitioner a1sq__'£h_e "by. .f?::n§E}lg. It has also appiicd for transfer of khaté "i2;:its got entered its name in the RTC and.mutatjaii"%eg;jstén"._ozg_ G and H. 'I'hereafter, regarding passing of award ﬁ'om the thy petitioner met the 4"" 1 nogice regarding the permission obtained the land in question and also regarding ob:oouno"of,:4ac»c'.'£roio EMIC piior to that. It was also complained it-Vy'-the ﬁéiitiener mat it neceive any notice aither regarding the "or the ﬁnai notiﬁcation. It woo informed by the 4"' has been notiﬁed in the name of the original wrﬁooeoemo is found in RTC and also expressed his inability to drop '*a»;7qiiis_£tion proceedings since ﬁnai notification is aiready isamd. to the petitioner, no notice is served mm on the earlier Thcrcaﬁsr, patitioner was advised to moo: me: 3"' and 5" Aoconiingly, petitionu gave 2 to the Pmjact In the statement of objections ﬁled by ﬁe 3"' rwpondent, the 3" respondent, the respondent has entered in to an agreett-__ consisting of an expness way connecting road along with the southern edge oftiue Bua:1gal6re'City NI§::4 'gruff . 7 and maria: roads. The lcglity of wag' befmve this Conn in WP 2922;199?'l ﬁm1 §§*lla;}s com an 21.9.1990 dismissed the its legality and also shnilarly, the .e}.pc9g Leave Petition on 26.3.1999. In lance again challenging me legality eubtjc' interest litigation and also alleging there is exceee am. 99;'; for the Project. Simultaneously, another two WP '#5334/2004 and 48981/2004 were ﬁled as seelzitag V"fe;_ a three' to the State Government to implement the ;s,a,»;'.;t~,;. - lvéegegsing the former petition, this Court allowed the subsequent ﬁled and issued a mandamus to the Government to ~ .. lixmlement" ﬂgeivprqiect. Even the writ appeal filed in No.72f2004 was allowed the Bench upholding the land acquisition in its entirety, the being an intcgrated inﬁasuucune project and land is away from the l?" ._ 'lmain aligtment of the road and is required for the pmjeci. Ayinst the order of this Court in the public interest special leave petition was filed J before ﬂu: Apex Court and by order dated 20.4.2005, it has project is in the utmost interest of mo public. It is spook:-iooﬁy nee;

acqms' itim of the land was valid and proper endow)' A V' for the pmject. It is submitted the issue ro:o£:s;gto%1oga1iiy.ot':1oo its purpose is not more res integta. held-bgir me ﬁat no" V L' cases of fraud or collusion or its instntmentalities is made out.' qiealt with and is aiso barred by the principle of ':t'o'ihe respondent, the acquisitien of eminent domain, cannot in any The say of the To sy.§iof:2s ef Ksengexi notiﬁed only 3::

guntas was is stated, annexare C endorsement is to the of:-'oot tinaiee land was notiﬁed for acquisitim to an "extent in survey number only but it was never stated be any acquisition in the said survey number. The of tiio':_ er that they have obtained' permission from the _ 'gevenmeeet the Land Reform: Act is not a relevant eansideratien to the present disptﬁe. it is settled position that notice would be served '-«¥.:n"f£:ze'e?wner or interested person whose nmno is recorded in the revenue " The preliminary notification has been mood heﬁone the petitioners [name is mutated in the revenue records. As regard the petiticm avermenias A?/M 3 ﬁnatthe1m1dsofaneBasawSe1niﬂﬁareexeludedﬁ'omacquisitienamfa1se and is not reievant for consideration. The statement that the Director Mr Ashok Kheny and Major Ramesh of the _ had gum assurance that no such acquisition would be ._ uh no such assurance was given on behalf of per ﬁne frame work agreement. for V Indusmies & Infrastructure m~ici~...é° "$6-'""1" i§'hot"'§usevan: for consideration. The case of the situate far away from the peripheral" of the conminee cox.su'uuc;3'i§§'t1seAV in Sy.No.255 owned by the petitiener t is misconcetved.' The project implemented involves more ﬂan 113.2600 crores and Q §f1e~,~.':eoor- crores is incurred in impleme.n- ting m the Supreme Court has held that ﬁve pmject is of puhiic intex'es't"'endv respondent Company to implement the woject as est powhle. While denying all contentﬁona raised by me is submitted that the validity of the notiﬁcation' has been kmnmtraied and no ground has been made out to grant the eejgsraycr.

ﬁx 9 In the additional statement of objections ﬁled E is stated, we preliminary notiﬁcation and me ﬁnal notiﬁcation in respect of sy.1<J§;'2§s of Kengeri Village to the extent of 2.27 acres are dated and even the award notice was issued to _ application for comionation of delay wag ﬁieri the } explained me delay in ﬁling the vwrxitjretﬁssn. made by the petitioner to not remedy at constitute a gonad to expiairrlixe' cases, the Apex Court has held tl1a_t.Vttte:(ieIay udvisemxivtles the petitioner from obtaining rm» 'mag: conéiﬁzem.

Infhe '§uem_~ 't2.f,:6§jectiens ﬁled regarding non-acquisition of lands ma, it is smed, the same is false. The . '_ lande tl_:_1_e3:'a1VII(3. Grant of permission under s.1o9 of the the concerned authorities is inconsequential. RI obtained by the peat' ton' er, the same cannot curtail A. Itisontherevem1erecardst1reKIAD}3had 'A .,rss:ned__ as required under the Statute and it is reflected in the records 'eagtezeyiinakka was me owner of the land who Wu and there need be a roving enquiry beyond the records in respect efissuanee of notice. The peﬁlioner failed to obtain the mutation of its name in within the signiﬁcant time and at this stage it is not 9 agtate non-'mane of notice and it has no locres '1 ' ' V "V ' Statement of objections has been ﬁxed, '4 and 5 and simiIm' contentien has the The respondents have acquired of the KIADB Act by 'SW8 WWW W Th' W *1' question and project as instructed by the contention that the land in question is.,_t'mr1_aw§§ we dues not hoid any water and the petiiioner Wes'-given revenue records i.e., the leathedar and V was aléc. eefom passing we order under S.28{3) of the A{~;%[ is coming within the alignment of the project. The

--:"requ'n'ed fer the pmject have been reverted or not the reason or the criteria which wiil hold in favour of pctixienzeaf'. The land of the petitioner is very much required for the project. Ifthe same Wm acquired as instructed by the Modal V. of the pmject, on such aoquisitien and ﬁnal notiﬁcation, the lam! V V ' » 'vests with the govemmem ﬁee ail encumbrances. Government Advocate has adopted the arguments of other respondenm though he has not fled any statement of objects. .V V Heard the counsel for the respective parties. Learned Sr. Coumel Sri s P ee"':5ﬁa[jw:aie avetmems made in the petition and that at; * notiﬁcation so issued by the 'ef avfdead person. Aithough the respondents clatzttife h§tVGi3i~,ﬁl€ rmme of Thknakka, accarding to him, relied upon some endorsement counsel by way of demosnstrieﬁon Birth & Death register wherein nanaa1cxa*mn'r.¢ Beam Register as having died an 5.5.2001

-- V tire"-Mtiitticipal Coxporation, Kengeri and the same '' V. "was Further, according to the petitianerk counsel, x authority in proceewmg for acquisition and fntziigsetioanv proceedings as against a dead pemen is sum-at andalso submitted ttmeventheclairaof A ﬂtat notice 'm served on Mmakka under S.28(6) of the t'."KiADBActacndthatladyisnotcosteemedwiththegxoceeditngsandthe have pmchasedthe land from one Rsju and Mtmjunath, As perthe pmvisions of ﬂue Land Acquisition Act, the nmnes of the vendors of the '\§ petitioners ought to have been reflected in the revenue records the ﬁxst instance. Petitioners having entered into an agreement on l5;1ﬁ."2_(}bQ and oniy after having got clearance ﬁmm various authorities, property. Noting that only on the basis ofpalupatti entexwﬂ u during 1999, the petitioners entered into ' ofland in Sy.No.25S ﬁom its exstwhile ownegkaju, K; . Ramakrishna the pnelimmar'y' nouﬁcaiiﬁwag issﬁeé. ~29.1f2eo3 Whereas pursuant to the agreement dated True! has pumhased the prepezty on to the acquisition notification was as per S109 of the Land _is-- Education Trust. The record of rights Wae'*al:'sc~ ef the Petitioner. The same has been entcred it_1 the of".rigii:s 21.4.2003 which order reiaﬂea back to the " ~.:_!ate,:saleAdeed'"23;ii3;2092. When the petitioner have applied to the Revenue 'is as good as caveat entered in to with the govemment of the property and also there was no impe<i:m' em for . I saIe httixvcug petitioner by the erstwhile vendors, in the back ground 'A x V' acm on the part cf the govemment to proceed with the % 1' without notifying the vendors ofthe petitioner as per the ratio laid Been by the Apex Court 'm Union ofluaia as 01': V: m Angle Afghan A' Agemiw. etc. ~AIR1968SC7'8iﬁanda1sotothc effect am it is open to the 33"' party who had acted on the representation made by the that the government shed} be bound to carry out me to made by it. Petitioner has also relieé upon Zttﬁicasce u Mmmfacmriug Ce Ltd & Ant Vs Ullaaswatgliia-V AIR 1971 sc 1021 and also in m me V T' Vs Sm ef Uttar Pmeseen gore _Aui1:§'v.19£.'9z sb 521,1;e_;§on:ene that government is not exempt representation made by it as to its future Goﬁiilﬂit and undkclosed gmund of neceeemf promise made by it nor claim to be pf an exparte appmsement of citcumstaxaetes. true that there is an agmament entered intcebgtﬁvaen' "end the Govemment on 3.4.1991, axe same was. cha1Ie§i1g£:%§1'Seimaii§*§ek4n' Raddy': was which came to be V' eeeeggea. me, said eeeeeee. by the High Cami in the Divisien Bench as w§II position is settled as to what is an Irtter Chmge or peep' t be adjudicated in respect of acquisition of land for 'ﬁgs fm1naii;;;:iL.of' BMIC project. The Nodal Agency had recommended and effect wquisition ofland as reported to the . In ﬁxat agamst Sy.No.255, the extent is shown as whereas against oﬁxer numbers that in Sy.No.12l and 122, etc., it is stated that they aee rcquimdforBMICProjectaaa1ch,inwiewof'thercpa1ofﬁzeNodai W 14 Agency, Sy.No.255 was not at all required. The Spk. Deputy Cmmaiseiezzet, BMIC Project in his letter dated 30.12.2005 has stated ooquisitioo of land for BMIC Project is pending Supreme Court and no decision can bev.ioi:oo_ae acquisition procoedm" gs at that point. The ' 20 Information Act to the to V L' the eifeet that land tier 0t' iig'h$:ef isrey inelutfmg another chain at' service in Toois estuppel on in part ofthe govemment.» fmo etaie in view ome documents Vi§i"'S:)r.No.255 is not required by I3M1c:Vio's"iseici;:4;a;orV B containing Inter Change Axea of ski -peiiphemlw io nmc Project and also in terms ofthe statementv issixetio The preliminary and ﬁnal * in respect of Sy.No.2S5 as it is against a dead played by me revenue auihawities wherein the Revenue no oteoioe the service of nutice under 523(2) to the effect that by Thimakka oo 21.3.2003 amiougi she has expired long V' " :baek'a:_1§i eiéoo notice under S.28(6) 'e said to have been received by aﬂixing. counsel for the petitioner has relied upon several decisions to stand by contention.

Referring to the case: of Mumﬁpal Causal. Slmb Hydar Bdg & Om - 2009(2) scces at para 6, .. J as per the ratio laid down in the said éehy petition. In me decision in m _1'|'§'alia§nr..i'A;& .V':(3}'s i§s ﬁ"'B'g Muzak', cenm. 0fSal¢s Tax, .141»-LL e-iiﬁle --}97é';,§§} 39:, the Apex Conn has held that see no the writ petitions basad on Part m erehe' it is a matter of discretion of the Leamed counsel eubmiued that we ofnotice and the endursanent made 'when; the acquisition proceedings is a dead person and also submitted, even the Neda: ehéidiﬁaat no me is required between Sy.No.255 , 'for erwey am} 'xi-wigee: aﬂee: in any manner and no prejudicc will be eleeseeeg nature ormelmhaenetemaamea Accordingiy, counsel represcnting the KIADB submitted that the notice Thimakka as per S28 ofthc Act mdthexeaftaton he-rgrand A Marakka under 8.128(6) as per the revenue records. Since ﬂu: naanc petitioner was not entered in the katha or in the revenue records, pctititmercouldnotbeservedwithazotice. Inthe absence ofany such may in w/ W T 16 the RTC records or in the revenue records, the question of issuing notice to the petitioner's vendor does not arise. In this regard, comasel the KIADB m weil as the counsel representing the NICE company ieeixef the case of Abtqja Inabawies Ltd Vs State of K sec 355 wherein it is held that failuae em {if we :5:

make entry in the mtttation register in favour oi' 'cwﬁern not render the acquisition pmceedings ii' of notice. It is also submitteti ,ti1e of the pet1t1' 'oner's vendor. The valid1' 'am-.ady been dealt Wiﬁl by the Division am, e f' I. _of ms; bone: is w'{¢s:V_as Vbyi es; Apex Court. Mere non~issnam:ve of guailiiito challenge the proceedh gs. Referring toeie Home Banking co-op. sway V1 BaZmmI¢' ., @"e§awa.'mmu' & 0!: - 11.3 1993 mg 1441, it is have no right to challenge. There is delay of more ti1a1i'2V_"}S'yeai3'Viii__fiih3g the writ petition. Already compensation has been is not a suanger and the vendors ofthe petitiozm -- and K L Raju are am before this cm In the ahaeme of ___"'enti'i:§-eiaitherecordsthattootherewesnaameminnofihe name ofthe vendor kathaorﬁze name ofthe petitioner inthe record, question ofissuence 1' «ofnoiicedoesnotariae. Inﬂiebegx?ming30g1mtasoflandwa,seae'marked for BMIC Project and by another notiﬁcation, the remaining extent of land was sought to be acquired and accordingly, referring to the validity of the Project and acquisition proceeding as upheld by the Division act'. this Court and ttm Apex Conn, counsel representing the KIA.I)B_ representing NICE company vehemently contended that no gonna to challenge the acquisition ~ .1: = " _ In the light of the argimzents 1;: mo"

acquisition proceedih gs ini!ia,£ed__in 2% éij s§;zs;o.2s5 ef'Kengen' " visage by a subsequent notification' to in accordance with law and whether stieijmst ' to seek permm ion by the authotities 'V the pan of the government in "miiiatmg" '_ gpeeadings in the area to an exam of 2.27 aexes e.-a1ries'*af the names of the vendors of the petitioner in the recon! er" being a notice to those persons and wheiher the V . for the relief as prayed for.

the outset, so far as service of notice on one Ihimaklca 'B " as per the endorsement available, made by the Revenue Inspector, Vappearstobeknacaslialmmuzerwiﬂwutverifyhagwhetherﬂwpmemiby W nameTlzimakkawasaiiveornot. Notieeiesaidtohavebeenserved accordingtothe respondent, on'I'himakkawho£sshownte havediedon 5.5.2061, on 24.7.2003 and, ﬁnﬂxer even by vixtae of the -"ate land in question has fallen to the share of the vendor of the their names has already been entered in the RTC on 3.9.2002g:

acquisition pmceedm gs initiated is dune" g Imuery Vt ' record ef rights in the name of the vendor ef ﬁrs! nearer to the date of acquisition ef . L' and the authorities in the usual course have acquire the land based on the revenue without making subsequeiat "ta.__is--su&ng notiﬁcation. May be there is m irregularity." the the notice is said to have been served by the a person.

2 although there was a preliminary netification to acqtuizfetéthe extent of 30 games in the stage in Sy.Ne.255, ' arxotixervttiitiﬁcatimx, ma extent of 2.27 acres in the same survey number is be acquired' Whereas, as seen from themapisketeh farms' hed, the of the area marked earlier to the extent of 30 guextas would form part Inter Change Area but, the remaining area in Sy.No.255 is situate beyond the Inter Charge Area. It aiso appears the report gven by the Nodal at/LN.» 19 Agency that that area wouid not be required also stands jusxiﬁeet More over, the land in question is said to have been pnrclaased by the their vendors much prior to the initiation of the Notice is also said to have been served on one ~ petitioner or his vendors were not to matter before the respondent KIADB ooize1nded"i31e'aoqais;'ii:or:V«;§§foeee{j;i11ugVs. L. In the decision in pmrqp Cl¢auia'ar§'2Br{¢I1£a P'3 Kr£sI_i;.w 2§.m"Mwa - A AIR 1933 Delhi 267, with refemce to*oroé¢jrj2é"'R;::e 4; 'CFC connection with a suit, the Delhi High Came 'heici against the poison who is dead' Hailiwi ﬁre suit is a nullity. Even in the case of 41122 I962 Sc :99, it is held am the suit against a where it is later on discovered that me V. was filed, was dead on the date it was filed and Vlétstendzrgetni be allowed for substitution of another person. Of c§ug;g;.Vme'V'¢o;::g«e1A'empm."" senting the respondents have argued that the ratio in iilaow be made applicable to the case on hand. Counsel also H K reter2~e.t3 to viiie decision in ﬁrm: Single Vs Ciuumm Pusan: -- AIR 195436' 'eA~%3$9; 'imiaaxuicuzax 3.9 & 21, cpc, wherein it is held that the decwe passed by 'T %T_: '' am wiﬁzout jurisdiction is a nullity and that its invalidity could be set up " 'whenever and wherever it is sought to be enforced . W .

'Q The daiay and lashes in filing the petition may be ijéﬁsda that there is no notice to the pctitionem or at last on with regard to 323(2) is concerned. May he Be1a2e,d;y'.4;;om{¢*TVi}s'.s2x§w:;.V:§F'age ' served on Marakka who is said to be Jdau gt--¢§r~e,t'u Though there may be: a reason for of V vendors by the revenue autlzaritﬁes, tube' "333; d<;cd'w'as exécuted much prior to me initiation of the but there appears to be improper service of 4r_:.§ti§e on: June was there and it was not notice on the person or the family Qsual and cavalier manner an endorsenrﬁrzt is jg. served Whereas in actuality ﬁxat person was found zvéo' to the so called service of notice. Vsevverak 4dec_iSionSV'--we*:7e Eiitxasd by the petitioners' counsel which are " Iilolichartd & Ors Vs H B Mum; -- Am-197:3 Sc 8%,-T. Corp. L141 Vs sme aft: P - AIR 1930 SC 286; M' Vs Maaicka Na-asemaaaai & cars - AIR 1979 sc ' . _671 my: Varghase Vs Bar Comtcil ofxenda -- AIR 1999 so 1281 on v 01; limitation, promissery cstoppel and also to the manner in which aieg has to be foilewed as provided in the Statute and also the J!"

decisiminSlaa!nIIyderBa'g'scaserwteds1:p1ratocomemthatthreeyearsis a pennissibie period of limitation for ﬁling writ petition. In totality to say, at the am instamce, notice is servedontheperson inwhose namethepropenywaa be the reason for delay as we]! in ﬁling -:b5.'A thc " V 'hr else by the petitioners. In so far as the as regards res;udtc' 'ata, in stem R Mamfaaurm 5; an g - ';2é'aje}$-»s¢c to s.11, CPC, it ieheid J in respect of xiﬂnt 'm public interest véae boom' 5 gudgm' ent 'm rem and would bar a subsequent iintereat raising same issues a were raised' in the . i**is3*i°*1- %%%%% 14 e ~. the above principle is not applicable in view ofthe _ factt§iatﬂt¢:Nbd§lAgemyhadgx\ren' ateponthatamzmaaaquesmatoau .4 ._e x£¢:s:t_ of acres was not at all remixed and it wiil not form part ofthe Area and this aspect has not been dealt in the public interest exelusivetytlaatlzhislandisvexymuehrequixedornot. Ofcomne " litegenerairats?ohiddownbytheDiv1sx>n"" Bmchofmsceuuwaaaingme vaii¢iityofthePmjectmdnotea1ily§nrespectofthelegalityor 'J irregularity found in the acquisition proceedings initiated survey number is ooncemed.

In Abra}: Immea ease eited wpraz ~'a-"eiied ' to the effect that service on owners and or their representatives is held mt * . L' getting his name entered in 'aeowoer eouid not complain of nomserviee of "notice reference to Ss.l27, 123 and 129 ofthe Land ;zewgee--.§$¢g itV~sg obligation on the part of the the purchasens in the record of eiostainebie for want of necessary pleadings with supportm' g he had made payment for that parties _ art the egne of of"-me sale deed. It is also held therein, mere ofthe revenue authorities to make entries in we record of any obligation on the authorities under ﬁxe Land ' Reveoee A(;__§'tc a raving enquiry.

that, that raiio holds the field but mnethelees the service of on the Rathedm or family members of the land owner is not clear by the respondent authorities. In the circummmees, this ratio awnnot" be made applicable to the case on hmd. Even though the petitioner 24 This isalso one ofthe g1*omdsonwhichttmpeﬁtione:-smefomzdjmﬁfaedha challcngiaxg the acquisition proceedings. The Special Otﬁcer is shown to have acted in an arbitrary and _ application ofmind despite the rcport of fire Amy. f % In so far as delay E concerned, the.n_'é"w~_?§a of notice on the person or family mmnb:_e1"s._V it such notice is served as required and Epmftimer has seught for permission Laﬁd zgefbizggs or by various authorities, that may not ojmerategs 31:65}. The fact rmnaim t1latfGr\?%i!tit»,0i€.nnt1<33AV"5.; V' acquiiedfromthcpetﬁmeris antuate' a'w*ayV "ge Area and as &at would not be necessary fiyr, of the roads developed, the by ﬁne respondent authority has to ht I Sy.No.255 ofléengeri Village to thcextent of2.27 aura A. Petitionis allowed L %%%WAn Sd/J Iudg;

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