Karnataka High Court
Sri Narayan Swamy vs The Commissioner on 30 August, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 30TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.20116 OF 2010 (BDA)
BETWEEN:
Sri. Narayan Swamy,
Son of Late Thanappa,
Aged about 71 years,
Resident of Billekalli Village,
Begur Hobli,
Bangalore - 560 076. ...PETITIONER
(By Shri. R.Vijaya Kumar, Advocate)
AND:
The Commissioner,
Bangalore Development Authority,
Sankey Road,
Kumara Park West,
Bangalore - 560 020. ...RESPONDENT
(By Shri. Ravi B Sabhahit, Advocate)
*****
2
This Writ Petition is filed under Articles 226 and 227 of
the Constitution of India praying to quash the endorsement
dated 1.2.2010 vide Annexure - L and consequently allot 4
(Four) sites in all ( 3 sites measuring 40 feet by 60 feet) and one
site measuring 30 feet by 40 feet) in favour of the petitioner
either in BTM Layout or in any of the layouts formed by the
Bangalore Development Authority in and around the BTM
Layout.
This Writ Petition is coming on for Hearing this day, the
court made the following:
ORDER
Heard the learned Counsel for the petitioner and the learned Counsel appearing for the respondent.
2. The learned Counsel for the respondent would submit that he is at a disadvantage since no statement of objections are filed and seeks time.
3. However, since the matter is of the year 2010 and since the Counsel had adequate opportunity to file statement of objections and the same not having been filed, the petition is 3 considered on merits, even otherwise having regard to the admitted facts and circumstances.
4. The facts of the case are as follows:
The petitioner was the owner of land in Survey No.54 measuring 1 acre 4 guntas and land in Survey No.55 measuring 2 acres 26 guntas, in all, measuring 3 acres 30 guntas. Both the items of land were at Devarachikkanahalli village, Begur Hobli, Bangalore South Taluk. The respondent - Bangalore Development Authority (hereinafter referred to as the 'BDA', for brevity) sought to acquire lands under a Preliminary Notification dated 6.8.1988, which was followed by a Final Declaration dated 3.11.1998 for the formation of a residential lay out called BTM 4th Stage Layout, Bangalore. The lands in question, along with other lands, were sought to be acquired for the said purpose. An award was passed by the Land Acquisition Officer concerned on 6.9.1993 and a compensation of Rs.1,74,205/- was awarded in respect of the land in Survey 4 No.54. Insofar as the land in Survey No.55 is concerned, a sum of Rs.4,22,025/- was awarded. The petitioner claims that the petitioner had voluntarily surrendered possession of both the items of land on 15.11.1993 to the respondent and this is evidenced from the records. The petitioner, therefore, did not seek any enhancement of compensation in terms of Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'LA Act', for brevity) before a competent civil court for determination and he had also not sought for re-determination of the compensation, if any, payable under Section 28A of the LA Act. However, references had been made by the respondent in a case in LAC 3/1996 in respect of land in Survey No.54 and in a case in LAC 10/1996 insofar as land in Survey No.55 was concerned in terms of Sections 30 and 31 of the LA Act for apportionment of the amount awarded by the Land Acquisition Officer. The respondent believed that there was a claim by a third-party, but, it however, was not a reference made at the instance of the petitioner. The said references 5 however, were disposed of by awards dated 30.8.2000 and 15.10.2001, respectively. The matters had attained finality thereof.
Thereafter, it transpires that the BDA had initiated an Incentive Scheme, pursuant to which, Rules were framed by the BDA, whereby it was proposed to confer one residential site for every 1 acre of land measuring 40' x 60' and proportionate sites in respect of any additional land less than 1 acre. It is the case of the petitioner that in view of the extent that was acquired of the petitioner's land and which was voluntarily surrendered by him under the said incentive scheme, the petitioner became entitled to three 40'x 60' sites and one 30' x 40' site and therefore, had made an application seeking the benefit under the said Incentive Scheme. The same was not immediately considered and the petitioner had to send a further reminder.
The petitioner also approached this court by way of a writ petition in WP 3505/2009 and it is pursuant to a direction 6 by this court dated 19.3.2009 that the petitioner's application has been considered. But, the BDA has now issued an endorsement denying that the petitioner was entitled to any such benefit. Therefore, the present writ petition.
5. The learned Counsel for the petitioner would submit that the only ground for rejection of the request of the petitioner claiming under the Incentive Scheme is that the petitioner's land had been acquired much prior to the coming into force of the Incentive Scheme and since the Preliminary Notification had been issued prior to the Incentive Scheme having come into force, therefore, the incentive scheme, would not apply to the case of the petitioner. The learned counsel would submit that this is not material and if possession had been voluntarily surrendered well before the BDA could take forcible possession, without any resistance by a land owner, it could be treated as a voluntary surrender. And in this regard, he would submit that the ultimate object of the Incentive Scheme is to 7 ensure that there is speedy acquisition, without resistance from land owners and if procedures have to take their course, it would have certainly justified the BDA's stand, if the petitioner had resisted delivering possession and if the BDA had to take recourse to coercive measures to recover any such possession. When that aspect is absent, it cannot be said that there was no voluntary surrender. The delay, if any, in the proceedings being completed may be placed even at the door of the BDA, in the BDA having unsuccessfully sought references in the aforesaid cases, which did not result in any positive result. Therefore, there is no justification in the petitioner being denied the benefit of the Incentive Scheme when it is not denied that he is indeed the land owner, who has been deprived of his land to a large extent of 3 acres and 30 guntas.
The learned Counsel appearing for the respondent - BDA would however seek to make a weak attempt to justify the stand of the respondent.
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As rightly pointed out by the learned counsel for the petitioner, the object of the Incentive Scheme was to reward the land owners, who had no resistance in delivering possession of their lands. Irrespective of whether the Preliminary Notification was prior to the Incentive Scheme, if the petitioner has delivered possession of the lands in question, without demur and without causing delay in the BDA taking possession of the lands in the usual course, it cannot be said that there was no voluntary surrender. As also rightly contended by the learned Counsel for the petitioner, having regard to the sequence of events, it cannot be said that there was any resistance by the petitioner in the delivery of possession of the lands.
In that view of the matter, the petitioner has made out a case for being conferred the benefit under the Incentive Scheme. Even if there are no sites available in the lands in question, it would be for the BDA to make an alternative arrangement in conferring the benefit. This is indicated in 9 order to avoid a possible fresh round of litigation, which the BDA is well capable of creating.
Therefore, the petition is allowed. Annexure -L is quashed. The BDA is directed to allot four sites of appropriate dimension, in accordance with the Incentive Scheme and in accordance with law, within a period of four months, if not earlier, from the date of receipt of a certified copy of this order.
Sd/-
JUDGE nv