Karnataka High Court
Mrs M C Padma vs The Commissioner on 4 April, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2024:KHC:13983
WP No. 53175 of 2014
C/W WP No. 53328 of 2014
WP No. 53644 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 53175 OF 2014 (LA-BDA)
C/W
WRIT PETITION NO. 53328 OF 2014 (LA-BDA)
WRIT PETITION NO. 53644 OF 2014 (LA-BDA)
IN W.P.No.53175/2014:
BETWEEN:
1. MRS M C PADMA
W/O.LATE G.PURSHOTHAM, AGED ABOUT 58YEARS,
RESIDING AT NO.1105, 8TH CROSS,
ASHOKNAGAR, BSK 1ST STAGE,
2ND BLOCK, BENGALURU-560050.
...PETITIONER
(BY SRI. R.B.SADASIVAPPA, ADVOCATE)
AND:
Digitally 1. THE COMMISSIONER
signed by
KIRAN BANGALORE DEVELOPMENT AUTHORITY,
KUMAR R
Location:
KUMARAPARK WEST, BENGALURU.
HIGH
COURT OF
KARNATAKA 2. THE SPECIAL LAND ACQUSITION OFFICER
BDA, KUMARAPARK WEST, BENGALURU-20.
3. THE CHIEF SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
STATE GOVERNMENT OF KARNATAKA,
BENGALURU.
...RESPONDENTS
(BY SRI. K.KRISHNA, ADVOCATE FOR R-1 &N R-2;
SRI. MANJUNATHA RAYAPPA, AGA FOR R-3)
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NC: 2024:KHC:13983
WP No. 53175 of 2014
C/W WP No. 53328 of 2014
WP No. 53644 of 2014
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSITUTION OF INDIA, PRAYING TO QUASH
THE PRELIMINARY NOTIFICATION DATED.6.4.1989 AS PER
ANNEXURE-D AS WELL AS FINAL NOTIFICATION
DATED.17.9.1987 AS PER ANNEXURE-E IN RESPECT OF LAND
MEASURING 1-06 ACRES FORMED IN SY.NO.136 OF
GATTIGERE VILLAGE, HAMLET OF HALAGEVADERAHALLI
VILLAGE, KENGERI HOBLI, BENGALURU SOUTH TALUK, SINCE
THE SCHEME WAS LAPSED AND ABANDONED AND THUS THE
RESPONDENTS HAVE NO JURISDICTION TO EXECUTE HER
IMPLEMENT THE LAPSED AND ABANDONED SCHEME, ETC.
IN W.P. No.53328/2014:
BETWEEN:
1. MRS.M.C.PADMA,
W/O LATE G.PURUSHOTHAM,
AGED ABOUT 58 YEARS,
2. MR.G.P.CHETHAN KUMAR
S/O LATE G.PURUSHOTHAM,
AGED ABOUT 35 YEARS,
3. MRS. G.P.SRIDEVI,
D/O LATE G.PURUSHOTHAM,
W/O B.SUMANTH,
AGED ABOUT 36 YEARS,
ALL ARE R/AT No.1105,
8TH CROSS, ASHOKNAGAR,
BSK 1ST STAGE, 2ND BLOCK,
BENGALURU-560 050.
...PETITIONERS
(BY SRI. R.B.SADASIVAPPA., ADVOCATE)
AND:
1. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY,
KUMARAPARK WEST, BENGALURU-20.
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NC: 2024:KHC:13983
WP No. 53175 of 2014
C/W WP No. 53328 of 2014
WP No. 53644 of 2014
2. THE SPECIAL LAND ACQUSITION OFFICER
BDA, KUMARAPARK WEST, BENGALURU-20.
3. THE CHIEF SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
BENGALURU.
...RESPONDENTS
(BY SRI. K.KRISHNA, ADVOCATE FOR R-1 &N R-2;
SRI. MANJUNATHA RAYAPPA, AGA FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DIRECT THE R-1 TO ISSUE NOC IN THE NAME OF THE
PETITIONER AS SOUGHT FOR IN THEIR REPRESENTATION
DATED:17.10.2014 AS PER "ANNEXURE-J" BY ALLOWING THE
PETITIONERS TO DEVELOP THE PROPERTY, ETC.
IN W.P. No.53644/2014:
1. MRS.M.C.PADMA,
W/O LATE G.PURUSHOTHAM,
AGED ABOUT 58 YEARS,
2. MR.G.P.CHETHAN KUMAR
S/O LATE G.PURUSHOTHAM,
AGED ABOUT 35 YEARS,
3. MRS. G.P.SRIDEVI,
D/O LATE G.PURUSHOTHAM,
W/O B.SUMANTH,
AGED ABOUT 36 YEARS,
ALL ARE R/AT No.1105,
8TH CROSS, ASHOKNAGAR,
BSK 1ST STAGE, 2ND BLOCK,
BENGALURU-560 050.
...PETITIONERS
(BY SRI. R.B.SADASIVAPPA., ADVOCATE)
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NC: 2024:KHC:13983
WP No. 53175 of 2014
C/W WP No. 53328 of 2014
WP No. 53644 of 2014
AND:
1. THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
KUMARAPARK WEST,
BENGALURU-20.
2. THE SPECIAL LAND ACQUISITION OFFICER,
BDA, KUMARAPARK WEST, BENGALURU-20.
...RESPONDENTS
(BY SRI. K.KRISHNA., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE PRELIMINARY NOTIFICATION ISSUED BY R-1
DATED:06.04.1989 AS PER ANNEXURE-D AS WELL AS FINAL
NOTIFICATION ISSUED BY R-1 DATED 12.09.1997 AS PER
ANNEXURE-F IN RESPECT OF LAND MEASURING 1-12 ACRES
FORMED IN SY.No.135 OF GATTIGERE VILLAGE, HAMLET OF
HALAGEVADERAHALLI VILLAGE, KENGERI HOBLI, BENGALURU
SOUTH TALUK., SINCE THE SCHEME WAS LAPSED AND
ABANDONED AND THUS THE RESPONDENTS HAVE NO
JURISDICTION TO EXECUTE HER IMPLEMENT THE LAPSED AND
ABANDONED SCHEME. ETC.
THESE PETITIONS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. In these three petitions, the acquisition of lands bearing Sy.No.134 measuring 1 acre 14 guntas, Sy.No.135 measuring 1 acre 12 guntas, Sy.No.136 measuring 1 acre 6 guntas of Gattigere Village, Hamlet of Halagevaderahalli -5- NC: 2024:KHC:13983 WP No. 53175 of 2014 C/W WP No. 53328 of 2014 WP No. 53644 of 2014 Village, Kengeri Hobli, Bengaluru South Taluk, have been challenged.
2. On 29.12.1988, a notification under Section 17 of the Bangalore Development Authority Act (for brevity, "the BDA Act") was published proposing to acquire 1851 acres 39 guntas. After considering objections, a declaration was issued under Section 19(1) of the BDA Act on 09.05.1994 in respect of 1458 acres 21 guntas. This declaration was challenged by the landowners of the respective lands including the petitioners in W.P.Nos.30801-803/1994 and connected matters.
3. It may be pertinent to state here that W.P.Nos.30801-803/1994, was allowed and the declaration was quashed on the ground that sanction of the Government had not been obtained as contemplated under Section 18 of the BDA Act.
4. Subsequently, on obtaining sanction, a declaration was issued on 16.09.1997 under Section 19 of the BDA -6- NC: 2024:KHC:13983 WP No. 53175 of 2014 C/W WP No. 53328 of 2014 WP No. 53644 of 2014 Act. This declaration was again challenged by the owners of land bearing Sy.Nos.135 and 136 (petitioners in WP.No.53644/2014 and WP.No.53175/2014), but the same was dismissed as withdrawn on 02.07.2002.
5. The BDA has stated in its counter that it has passed the award in respect of Sy.Nos.135 and 136 on 29.09.1999 and it also took possession on 09.04.1999 and 29.09.1999 respectively. It has also stated that a notification under Section 16(2) of the BDA Act was also published in respect of Sy.Nos.136 and 136 on 18.08.2009.
6. As far as Sy.No.134 was concerned, it has stated that this land was forfeited to the State Government for contravention of Section 79A and 79B of the Land Reforms Act and since the land belonged to the State Government, no award has been passed in respect of Sy.No.134.
7. It may be pertinent to state here that it is not in dispute that the order of forfeiture passed by the Assistant -7- NC: 2024:KHC:13983 WP No. 53175 of 2014 C/W WP No. 53328 of 2014 WP No. 53644 of 2014 Commissioner under Section 83 of the Land Reforms Act has been set aside on 23.01.1992, i.e., two years before a declaration under Section 19 of the BDA Act was published, but yet an award in respect of Sy.No.134 has not been passed.
8. It is the case of the petitioners that the entire Banashankari 5th Stage layout is a still born layout and the scheme has not at all been executed. It is their further case that possession of their lands remained with them though a mahazar has been created to indicate as if the possession was taken. Having regard to the said submission, this Court passed the following order on 07.03.2024:
"The Bangalore Development Authority shall file an affidavit stating the total extent of land notified in Halagevaderahalli Village under Section 17 of the Bangalore Development Authority Act (for short, "the Act") and also the total extent of land notified in the declaration under Section 19 of the Act. The Bangalore Development Authority shall also state the total extent of land withdrawn from acquisition by -8- NC: 2024:KHC:13983 WP No. 53175 of 2014 C/W WP No. 53328 of 2014 WP No. 53644 of 2014 the Government under Section 48(1) of the Land Acquisition Act in a tabular column. The Bangalore Development Authority shall state that if it has found any layout in Halagevaderahalli and if so, to what extent and in which survey numbers. The Bangalore Development Authority shall also file a sketch indicating the total extent of land declared under Section 19 of the Act and indicate the extent of land that have been withdrawn from acquisition in the very same sketch."
9. In response to the said order, an affidavit is filed by the Executive Engineer of the BDA in the following terms:
"2. I submit that as per the available records and information from the Engineering Section, I am herewith furnishing the following acquisition details in respect of Banashankari 5th stage layout.
i. Total extent of land notified in Preliminary Notification dated 29.12.1988 Gazetted on 6-4- 1989 was 1851 Acres 39 guntas.
ii. Total extent of land notified under final notification dated 9-5-1994 Gazetted on 18-5-1994 was 1458 acres 21 guntas.
iii. Total extent of possession hander over is 421 acres 17 guntas.-9-
NC: 2024:KHC:13983 WP No. 53175 of 2014 C/W WP No. 53328 of 2014 WP No. 53644 of 2014 iv. Total extent of layout formed in BSK 5th stage layout 116 acres 27 guntas.
3. The details of said 1458 acres 21 guntas of land is as under:
i. Built up area 279 A - 06 gts.
ii. Deleted area subsequent
To the writ petitions orders 58 A - 03 gts.
iii De-notified areas 205 A - 18 gts.
iv Layout formed area 116 A - 27 gts.
v Govt. land 255 A - 04 gts.
vi Lands under litigations 544 A - 03 gts.
With regard to Halagevaderahalli village is concerned:
i Total extent of land notified in Preliminary Notification dated 29-12-1988 Gazetted on 6-4- 1989 was 37 Acres 20 guntas.
ii Total extent of land notified under final notification
dated 9-5-1994 Gazetted on
8-5-1994 was 199 acres 01 gunta.
iii Total extent of layout formed is 10 Acres
33 gts.
4. The details of said 199 acres 01 gunta of land in Halagevaderahalli village is as under:
i. Built up area 19 A - 20 gts.
ii. Deleted area subsequent
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WP No. 53175 of 2014
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WP No. 53644 of 2014
To the writ petitions orders 28 A - 27 gts.
iii De-notified areas 33 A - 34 gts.
iv Layout formed area 10 A - 33 gts.
v Govt. land 43 A - 23 gts.
vi Lands under litigations 62 A - 24 gts.
5. I submit that in respect of the land in Sy.No.134, 135 and 136 of Halagevaderahalli Village is concerned BDA has not formed the layout in view of the litigations.
Google sketch of the above survey numbers are produced at DOCUMENTS No.1 to 3 respectively."
10. As could be seen from the said affidavit, the BDA admits that though an extent of 1458 acres 21 guntas was notified, it has formed a layout only in respect of 116 acres 27 guntas and the remaining land of 279 acres 3 guntas of has been built up, 58 acres 3 guntas has been deleted pursuant to the orders passed by this Court, 205 acres 18 guntas has been denotified, 255 acres 4 guntas was Government land and 544 acres 3 guntas was under
litigation.
11. If in an area comprised of 1458 acres 21 guntas, the BDA has formed a layout only in respect of 116 acres 27 guntas, it is obvious that the scheme was never executed
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NC: 2024:KHC:13983 WP No. 53175 of 2014 C/W WP No. 53328 of 2014 WP No. 53644 of 2014 even in a limited way. In order to save the scheme from lapsing, the BDA would have to establish that the scheme was substantially executed. In my view, if the BDA has formed a layout only in an extent of 116 acres, out of 1458 acres that it was bound to acquire, it is obvious that the scheme can never be considered to be substantially executed and the scheme would therefore lapse under Section 27 of the BDA Act.
12. As far as Halagevaderahalli is concerned, out of 199 acres 1 gunta of land, the BDA as per its affidavit has formed a layout only in 10 acres 33 guntas, which makes it clear that the entire land notified under the notification has hardly been acquired and utilized or taken over by the BDA. It cannot therefore be held that the scheme at least in respect of Halagevaderahalli has been executed by the BDA in any meaningful manner.
13. The fact that the affidavit also admits that no layout has been formed in the lands which are the subject matters of these writ petitions and the Google
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NC: 2024:KHC:13983 WP No. 53175 of 2014 C/W WP No. 53328 of 2014 WP No. 53644 of 2014 photographs produced along with them, also indicates that Sy.Nos.134 and 135 are substantially built up, make it clear that the BDA cannot contend that these lands can still be utilized for formation of layout.
14. It will have to be borne in mind that the declaration in question were issued way back in the year 1997 i.e., nearly 27 years ago and the BDA cannot be expected to form any layout in small pockets of lands. It is to be borne in mind that the entire objective of the BDA is to form a comprehensive layout which is orderly and well planned and the BDA cannot obviously form a layout in small pockets of land which are isolated and have no connectivity. It will have to be stated that the BDA alone would be responsible for sorry state of affairs and the BDA cannot blame the land owners or any others for its inaction in executing the scheme substantially.
15. Having regard to the fact that only 10 acres of land was utilized for formation of layout in Halagevaderahalli Village, it is obvious that the scheme cannot be
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NC: 2024:KHC:13983 WP No. 53175 of 2014 C/W WP No. 53328 of 2014 WP No. 53644 of 2014 implemented at all in Halagevaderahalli Village and therefore, the notifications under which the subject matters of these writ petitions were acquired would have to be quashed.
16. However, learned counsel for the BDA sought to contend that even if the scheme had lapsed, the acquisition would nevertheless be valid and the BDA can still utilize the acquired land for some other purpose. Learned counsel has placed reliance on the judgment of the Apex Court in the case of NANDKISHOR BABULAR AGRAWAL Vs. THE STATE OF MAHARASHTRA & OTHERS in Civil Appeal No.7634/2023 to buttress his arguments.
17. As stated above, the BDA is not the authority to acquire land in small bits and thereafter, utilize the same in any manner it deems fit. The BDA under the provisions of the BDA Act is expected to formulate a scheme, notify the same, hear the objections of the land owners and other interested persons, obtain sanction of the Government and thereafter, proceed to execute the
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NC: 2024:KHC:13983 WP No. 53175 of 2014 C/W WP No. 53328 of 2014 WP No. 53644 of 2014 scheme after declaration is issued. If the BDA was unable to take possession for various reasons, it cannot thereafter contend that in small bits of land, it can still possess ownership and utilize it for some other purpose. The BDA cannot use the power under the Act to acquire land and dispose of the same in order to raise revenue for itself. Having regard to the objective for which the BDA has been formed, if a layout is not formed after the lands were acquired and if the scheme as a consequence lapses, it would obviously follow up with the quashing of the notifications.
18. Learned counsel for the BDA, however, sought to contend that since the BDA had taken possession by virtue of decision rendered in the case of INDORE DEVELOPMENT AUTHORITY Vs. MANOHARLAL & OTHERS
- 2020 8 SCC 129, even if the land owners retain possession of the land, the same would be of no consequence and the possession would be that of a tress passer.
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19. It is to be stated here that the Apex Court in INDORE DEVELOPMENT AUTHORITY's case was considering the effect of the land vesting in the State free from all encumbrances and was not contemplating a situation whereunder an authority like BDA had formulated a scheme and had not executed the scheme. If the very purpose of executing the scheme is completely lost by not taking possession, the BDA cannot be permitted to contend that it can utilize the lands for any other purpose.
20. I am therefore of the view that this argument of the BDA cannot be accepted.
21. Consequently, the impugned notifications are quashed insofar as the lands of the petitioners herein are concerned. Writ Petitions are accordingly allowed.
Sd/-
JUDGE PKS List No.: 2 Sl No.: 10