Karnataka High Court
Sri B S Sudhakar Shetty vs State Of Karnataka on 29 January, 2020
Author: R Devdas
Bench: R Devdas
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2020
R
BEFORE
THE HON'BLE MR.JUSTICE R DEVDAS
WRIT PETITION NO.33755/2013 (LA-BDA)
BETWEEN
SRI B S SUDHAKAR SHETTY
S/O LATE B MAHABALA SHETTY
AGED ABOUT 65 YEARS
RESIDING AT NO.9-71-3(2)
VIA YEKKAR, KANKANADY VILLAGE
MANGALORE-575007
...PETITIONER
(BY SRI O.SHIVARAMA BHAT, ADVOCATE)
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT
VIKASA SOUDHA
BANGALORE
2. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY
K P WEST, BANGALORE-20
3. THE DEPUTY COMMISSIONER
LAND ACQUISITION, BDA
K P WEST, BANGALORE-20
4. M/S SURABHI SEVA SANGHA REGD.
NO.187, 22ND CROSS, 6TH BLOCK
JAYANAGAR, BANGALORE-560082
BY ITS SECRETARY
S SUBBA RAO
S/O LATE KRISHNAMURTHY
RESIDING AT NO.187, 22ND CROSS
2
6TH BLOCK, JAYANAGAR
BANGALORE-560082
...RESPONDENTS
(BY SRI. H.K.BASAVARAJ AGA FOR R1;
SRI. M.N. RAMANJANEYA GOWDA, ADVOCATE FOR R2 & R3;
R4 HELD SUFFICIENT)
THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 & 227 OF THE CONSTITUTION OF
INDIA PRAYING TO QUASH GOVERNMENT ORDER
DATED:28.05.2013 PASSED BY THE RESPONDENT
NO.1 VIDE ANNEXURE - A AND ETC.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
R. DEVDAS J., (ORAL):
This is yet another case of avoidable deprivation, forced upon residential site owners, ostensibly, to provide residential sites to people who do not have any site in Bengaluru.
2. The petitioner's wife Smt.D.Pushpa Alva was a Member of Surabi Seva Sangha. It is stated that the Sangha was established for the purpose of acquiring land to form a residential layout and allot sites to its members. On the strength of the 3 contribution made by its members, the Sangha acquired Sy.Nos.28/1A, 28/2, 28/3 and 35/1 situated at Ramasandra Village, Kengeri Hobli, Bangalore South Taluk. It is stated that Sangha formed a layout and allotted sites on the basis of seniority to its members. The petitioner's wife was allotted site No.86 in the layout and sale deed was executed by the Society through its Secretary on 21.11.1991. The sale deed is registered in the office of the Sub-Registrar, Kengeri. It is contended that the petitioner's wife was put in possession of the property. Since the property fell within the jurisdiction of the Gram Panchayat, taxes were paid to the concerned Gram Panchayat.
3. The respondent-State Government, at the instance of the second respondent-Bengaluru Development Authority issued a preliminary notification dated 14.12.2001 for the formation of Sir M.Vishveswaraiah layout. Since the respondents notified the lands which were standing in the name of the Sangha, the Sangha as well as the allottees of the 4 sites filed objections to the preliminary notification issued by the respondents. However, it is contended by the learned Counsel for the respondent-BDA that the notification was issued in the name of one Sri S.Subba Rao, S/o Krishnamurthy, and not in the name of the Sangha.
4. Learned Counsel for the petitioner would clarify that Sri S.Subba Rao was the Secretary of the Sangha and his name has been shown in the preliminary notification. Nevertheless it is an admitted fact that about 340 objections including that of S.Subba Rao, were filed before the Land Acquisition Officer. However, the learned Counsel for the petitioner submits that without considering the objections in the right perspective, the respondents proceeded to issue a final notification on 31.10.2002. Thereafter, award was passed and BDA proceeded to form the layout.
5. Learned Counsel for the petitioner submits that the petitioner has not received any compensation. It is further contended that 5 compensation has neither been received by the Sangha. However, the Bengaluru Development Authority (hereinafter referred to as the 'BDA' for short), sent a proposal to the Government to denotify the lands belonging to the Sangha and its members. This is evident from the communication dated 21.04.2008 Annexure 'D' made by the Deputy Commissioner (Land Acquisition), Bengaluru Development Authority to the Principal Secretary of the Urban Development Department. In the said communication, the authority has narrated all the above aspects including the objections filed by the Society and the members and also brought to the notice of the State Government that Sri Subba Rao, the Secretary of the Sangha and others had filed W.P.No.46264/2002 and connected matters seeking a direction to drop the acquisition proceedings. However, it was noticed that about 4 acres and 8 guntas out of the said lands were allotted to the Central Power Research Institute by way of registered sale deed dated 20.12.2005. During the course of the 6 argument, it was also brought to the notice of this Court that about 10 acres of the land was allotted in favour of Kanaka House Building Co-operative Society on 16.04.2007. It was also brought to the notice of the State Government that the Sangha had formed 492 sites in 24 acres and 30 guntas of land. However 421 sale deeds were executed by the Sangha in favour of the allottees, even before the preliminary notification was issued by the State Government. It was also brought to the notice of the State Government that out of 24 acres and 30 guntas belonging to the Sangha, layout was formed in an area except 10 acres and 22 guntas which remained vacant. Giving this background, the BDA recommended to the State Government to drop the proceedings insofar as the lands belonging to the Sangha is concerned. The recommendation followed the resolution passed by the Board on 14.02.2008. However, since the State Government did not pass any orders, the Sangha once again approached this Court in W.P.Nos.16596-598/2008 and connected 7 matters. This Court by order dated 09.04.2009, directed the State Government to consider the proposal sent by the BDA and pass orders within four months from the date of the order.
6. The petitioner's wife, in the meanwhile, passed away on 24.02.2009. Subsequently, on the representation given by the petitioner, the petitioner's name has been entered in the tax demand register of the concerned Gram Panchayat. Inspite of the directions issued by this Court in W.P.Nos.16596- 598/2008, when the State Government did not pass any order, the petitioner once again filed W.P.No.18424/2011 and sought for a writ of mandamus directing the State Government to consider the proposal sent by BDA and denotify the lands belonging to the Sangha, including the petitioner's sites. The said writ petition was disposed of on 14.02.2012 directing the State Government to consider the proposal of BDA on merits, within two months from the date of the order. When the State Government did not comply with the directions 8 issued by this Court, the petitioner filed a contempt petition in CCC No.508/2013. During the course of the contempt proceedings, the learned Government Advocate placed before the contempt Court the order dated 28.05.2013 passed by the State Government rejecting the recommendation made by the BDA. Consequently, the contempt proceedings were dropped. The petitioner is therefore before this Court seeking quashment of the order passed by the respondent-State Government on 28.05.2013 at Annexure 'A' and for such other reliefs.
7. On the last date of hearing i.e., 20.01.2020 this Court directed the learned AGA to produce the original records from the State Government to find out what was the reason or consideration that went into the decision making of the State Government, while rejecting the recommendation made by the BDA.
8. The learned AGA has furnished the original file bearing No.178 of 2013. As seen from the file notings, the Government Advocate had brought to the 9 notice of the State Government that this is a sensitive matter and since denotification may be required, the file should be placed before the denotification Committee. Subsequently at file notings No.44, it is found that it was brought to the notice of the State Government that a Special Leave petition filed by the Sangha in SLP Nos.13017-18/2012 was pending consideration and therefore some more time was sought to take a decision.
9. But what is important to notice is that though the final notings do not disclose that a decision was taken by the State Government to reject the requisition made by the petitioner herein, in the impugned order dated 28.05.2013, it has been stated that the requisition of the petitioner has been rejected by the State Government. Be that as it may, when the State Government was directed to place on record what was the consideration that went into the State Government's decision in rejecting the recommendation made by the BDA, no such discussion is available in the file notings. The only 10 reason assigned while passing the impugned order is that the SLP filed by the Sangha is pending before the Hon'ble Supreme Court and the entire acquisition proceedings have been completed and award has been passed and therefore, the request made by the petitioner is said to be rejected.
10. In other words, the recommendation made by the BDA at the behest of the Sangha is still pending before the State Government. At this juncture, the learned AGA places on record another file bearing No.800 of 2016 to submit that the SLP was disposed of on 07.02.2014 noticing that the contemnor, Additional Chief Secretary, Incharge of the Department of Urban Development had since retired and a new incumbent had taken over as Additional Chief Secretary and therefore, the Sangha withdrew the contempt proceedings with liberty to file a fresh representation before new incumbent. Subsequently, it is given to understand that the Sangha gave one more representation on 27.07.2015 requesting the State Government to allot the extent of 11 24 acres and 12 guntas, on 'land to land basis' in consonance with the decision already taken by the BDA. Nevertheless on 17.01.2020 the Additional Chief Secretary of the Urban Development Department has written to the Commissioner, Bengaluru Development Authority, rejecting the request made by the Sangha on the ground that there was no provision to allot lands in bulk on land to land basis.
11. But what is glaring is that the respondents, including the State Government do not seem to have applied their mind to the objections filed by the Society, its Secretary, Sri S.Subba Rao, and 339 Members/allottees, to the preliminary notification issued by the State Government. It is hard to understand as to how the Special Land Acquisition Officer as well as the State Government could ignore the objections filed by 340 persons along with proof to show that sale deeds were executed by the Sangha in favour of its members and possession of all such sites were handed over to the allottees much prior to 12 the preliminary notification issued by the State Government. In the instant case, the sale deed was executed in the year 1991, while the preliminary notification was issued in the year 2001, i.e., 10 years after the sale deed was executed by the Sangha in favour of the petitioner's wife. Objections are not filed by the land losers to be rejected or discarded by the Special Land Acquisition Officer or the State Government, without due application of mind. When it was brought to the notice of the State Government that atleast 421 sale deeds have been executed by the Sangha in favour of its members well before the preliminary notification was issued by the State Government, it is difficult to digest the fact that such objections have been ignored and final notification came to be issued without due consideration of the objections.
12. Section 5A of the Land Acquisition Act, 1894, provides for an opportunity of being heard in person or by any person authorized by him in this behalf or by pleader and shall, after hearing all such 13 objections and after making such further inquiry, as the Collector thinks necessary, make a report to the appropriate Government, containing his recommendations on the objections, together with the record of the proceedings held by him, for the decision of the Government. It is trite to notice the words of the Apex Court in the case of Women's Education Trust and Another Vs. State of Haryana and Others reported in (2013) 8 SCC 99, which are as follows:
"The rule of audi alteram partem engrained in the scheme of Section 5-A of the Land Acquisition Act, 1894 ensures that before depriving any person of his land by compulsory acquisition, an effective opportunity must be given to him to contest the decision taken by the State Government/competent authority to acquire the particular parcel of land."
13. It is also held in the said decision that the objector can make all possible endeavours to convince the Land Acquisition Officer that the acquisition is not for a public purpose specified in the 14 notification; that his land is not suitable for the particular purpose; that other more suitable parcels of land are available, which can be utilised for execution of the particular project or scheme. In the present case, about 340 persons have raised objections that they have already purchased residential sites, formed on the land in question and sale deeds which were executed by the Sangha was duly registered and they were in possession of the sites. The Land Acquisition Officer was duty-bound to objectively consider the arguments advanced by the objector and make recommendations, duly supported by brief reasons, as to why the particular piece of land should or should not be acquired and whether the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Land Acquisition Officer should reflect objective application of mind to the entire record including the objections filed by the interested persons. The Land Acquisition Officer was required to submit his report and the recommendations to the 15 State Government along with the record of proceedings to enable the latter to take final call on the desirability, propriety and justification for the acquisition of the particular parcels of land. The Apex Court further held that the declaration under Section 6(1) of the Act can be issued only if the appropriate Government, on an objective application of mind to the objections filed by the interested persons including the landowners and the report of the Land Acquisition Officer, is satisfied that the land is needed for the particular purpose specified in the notification issued under Section 4(1) of the Act.
14. It is noticeable that in the case of Women's Education Trust (supra), the Apex Court held that admittedly 95 persons whose land was released from acquisition had raised construction in the area earmarked for green belt. The appellant landlords had raised similar construction. The only difference between the constructions made by the appellant landlords and the others was that of the size. The difference in the size of the plots did not 16 constitute a valid ground for discrimination between those who had raised construction on the land which fell within the green belt. Therefore the Apex Court concluded that there is no escape from the conclusion that the impugned acquisition was ultra vires the provisions contained in Section 6 of the Land Acquisition Act.
15. But much water has flown under the bridge and several round of litigations have taken place with respect to the petitioner as well as the Sangha with the respondents. The learned Counsel for the petitioner has brought to the notice of this Court decisions passed by this Court in the case of G.R.Jayamma And Others Vs. the State of Karnataka and Others in a batch of writ petitions in W.P.Nos.20875-20938 of 2001 and connected matters which were disposed of on 20.07.2001 and the decision in the case of Junjamma and Others Vs. The Bangalore Development Authority, Rep. by its Commissioner, Bangalore and Others reported in ILR 2005 KAR 608.
17
16. In G.R.Jayamma's matter, the factual matrix is the same as the case on hand. The only difference is that the Layout sought to be formed was Anjanapura Layout. This Court, after noticing that though revenue sites were formed even prior to the issuance of the preliminary notification and revenue sites were formed and allotted to subsequent purchasers, the State Government sought to acquire the very same lands and sites for formation of Anjanapura Layout. This Court noticed that large number of site holders are rendered siteless by the acquisition and that there were about 250 site losers in the batch of writ petitions.
17. It was also noticed that under similar circumstances, in the case of Chandru and Others Vs. Bangalore Development Authority in W.P.No.31750- 31785/2000 decided on 02.11.2000, while rejecting the challenge to the acquisition proceedings, BDA was directed to consider the cases of the petitioners therein for allotment on priority basis, in accordance with law, having regard to the fact that they had lost 18 their sites. The contention of the petitioners that, if for any reason, the Court were to decline to interfere with the acquisition, then BDA may atleast be directed to allot their respective sites in the Anjanapura Layout, subject to payment of betterment/development charges; or allot them suitable alternative sites in the said Layout at usual allotment price subject to adjustment of compensation payable in regard to their respective sites, found favour with this Court.
18. Having considered the fact situation which are very similar to the case on hand, this Court having noticed that a broad consensus was reached between the petitioners and BDA, disposed of the petitions with certain directions.
19. Whereas in Junjamma's case, the acquisition was for the formation of Sir M.Visweshwaraiah Layout, which is the same as the case on hand. There too, this Court having noticed the factual matrix which were similar to that of 19 Chandru and G.R.Jayamma's matter, passed similar orders that were passed in the case of G.R.Jayamma.
20. Learned Counsel for the petitioner submits that if similar orders are passed by this Court directing the respondent-BDA to allot sites, the petitioner will be satisfied. Although the learned Counsel for the petitioner submits that the petitioner should not be penalized by asking to pay the prevailing allotment prices, this Court is of the opinion that the directions given by this Court in the case of G.R.Jayamma and Junjamma are in terms of the Bengaluru Development Authority (Allotment of Sites) Rules, 1984, and the same is required to be followed in this case also.
21. Before parting with this writ petition, this Court deems it fit to make the following observations:
When objections are filed by land losers, it is the statutory duty of the Special Land Acquisition Officer as well as the State Government to consider the objections in its right perspective.20
The objections cannot be ignored without assigning proper reasons. As in the case on hand, if the State Government had bestowed its attention to the objections filed by 340 persons who had been allotted with sites, this Court does not see any reason as to why the objections should not have been upheld and the proceedings should not have been dropped by the State Government. It is not the policy of the State Government to snatch away sites from one person and allot it to another person. Since the State Government has taken upon itself to provide land and roof over the heads of the people who do not have a roof over their head, it would definitely not be the policy or intension of the Government to render a person siteless or landless and allot the same to another person.
If only the State Government had considered the objections filed by the petitioner herein and similarly situated persons, the hardship caused to persons like the petitioner and many 21 more could have been avoided along with unnecessary litigation. Therefore, the State Government is once again requested to look into these aspects, issue proper instructions and sensitize its Officers to comply with the statutory requirements both in its letter as well as spirit.
22. Consequently, the petition is allowed in part and this Court proceeds to pass the following:
ORDER
(a) The petitioner shall register himself as an applicant for allotment under the Bangalore Development Authority [Allotment of sites] Rules, 1984, within a period of two months from today (extendable by another one month by BDA, if sufficient cause is shown).
Petitioner will have to pay only the registration fee. He need not pay initial deposit as his site has been acquired and he is not entitled to receive compensation in regard to the sites under this arrangement.
(b) The petitioner shall file an application for allotment of sites to BDA within three months from today, in the prescribed form stating that he is the applicant who was the petitioner in this Writ Petition. Petitioner shall file the document with BDA along with the application to verify the same.
22
(c) BDA will treat him as an applicant entitled to priority in allotment and allot him a site measuring 40'x60' (since the sale deed of the petitioner shows 40'x60') in Sir M.Visweswaraiah Layout or in any other nearby layouts in Bangalore at the prevailing allotment prices subject to the petitioner satisfying the condition that he does not own any residential property in Bangalore. [The requirement of ten years domicile shall not be insisted upon in the present case].
(d) If there are no rival claimants for compensation in regard to the plots claimed by petitioner, and if the ownership of the petitioner in regard to his site which has been acquired is not disputed, BDA shall calculate the compensation payable to the petitioner and give credit to the same by adjusting the same towards the allotment price for the site to be allotted and call upon the petitioner to pay the balance. Petitioner shall be given six months time for making payment [to enable petitioner to know the amount of compensation which he will be entitled and to ascertain how much balance he should pay].
(e) If there are rival claimants in regard to the survey numbers or the sites or if any petitioner's title in regard to the sites are challenged, BDA shall make a reference in regard to the compensation in regard to such site/land in question, to the Civil Court under Section 30 of the Land Acquisition Act, 1894, and the petitioner will have to sort out the matter before the reference Court. In that event, the petitioner will have to pay the full allotment price within the time stipulated, without seeking adjustment of compensation for the acquired site.
23
The original files are returned to the learned AGA.
The petition stands disposed of accordingly.
Sd/-
JUDGE JT/-