Karnataka High Court
M Mukunda S/O Late Muthappa vs State Of Karnataka on 12 February, 2016
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY 2016
BEFORE
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION No.21641 OF 2012 (BDA)
BETWEEN:
1. M. Mukunda,
Son of Late Muthappa,
Aged about 65 years,
2. M. Srinivas,
Son of Late Muthappa,
Aged about 55 years,
Both the petitioners are
Residing at No.39,
Hulimavu Village,
Begur Hobli,
Bangalore South Taluk.
...PETITIONERS
(By Shri Shashikiran Shetty, Senior Advocate for Shri
K.H.Somashekhar, Advocate for Petitioner No.1;
Shri Uday Holla, Senior Advocate for Shri H.N.Basavaraju,
Advocate for Petitioner No.2)
2
AND:
1. State of Karnataka,
Represented by its Secretary to Government
Department of Housing and Urban
Development,
Bangalore.
2. The Commissioner,
Bangalore Development Authority,
T. Chowdaiah Road,
Kumara Park West,
Bangalore.
...RESPONDENTS
(By Shri Vijaykumar A Patil, Additional Government
Advocate for Respondent No.1;
Shri A. Lokanath, Advocate for Respondent No.2)
*****
This Writ Petition filed under Articles 226 and 227 of the
Constitution of India, praying to call for the records from the
respondents and to direct the respondents not to enforce the
scheme called BTM Layout 6th Stage as against 1 acre 33
guntas of land in Sy.No.18/2 of Hulimavu Village, Begur
Hobli, Bangalore South Taluk morefully described in the
schedule below in view of lapsing of acquisition in terms of
Section 27 read with Section 36 of the Bangalore Devlopment
Authority Act, 1976, based on the judgment of the Supreme
Court in Offshore Holdings Private Limited v/s Bangalore
Development Authority, reported in (2011) 3 SCC 139 para 124
and etc;
This Writ Petition coming on for Hearing this day, the
court made the following:
3
ORDER
Heard the learned Senior Advocates, Shri Shashikiran Shetty and Shri Udaya Holla, appearing for the Counsel for the petitioners no.1 and 2, respectively and the learned Additional Government Advocate appearing for respondent no.1 as well as the learned counsel for respondent no.2.
2. The facts are that the petitioners are said to be the owners in possession of land bearing Survey No.18/2 measuring 1 acre 33 guntas of Hulimavu village, Begur Hobli, Bangalore South Taluk. The land originally belonged to one N.Muthappa, son of Pillaiah, who is said to be the father of the petitioners. After the death of the father of the petitioners, the petitioners claim to be in possession. The RTC for the year 2011-12 discloses that the petitioners are in possession of the lands in question. The land in question was notified for acquisition by the second respondent, namely, the Bangalore Development Authority (BDA) for the purpose of formation of 4 Byrasandra-Tavarekere-Madivala VI Stage Layout. The preliminary notification was issued on 8.9.1987 and the final notification was issued on 28.7.1990 in respect of an extent of 2 acres and 2 guntas. It was also disclosed that there was a symbolic possession said to have been taken on 17.5.1994 in terms of Section 16(2) of the Land Acquisition Act, 1894 (Hereinafter referred to as the 'LA Act', for brevity).
3. It is the case of the petitioners that though such notification has been issued, physical possession of the land has never been divested of the petitioners and it has not been utilized for any purpose by the BDA and insofar as the total land acquired, the scheme has not been implemented, in that the total extent acquired was 562.34 acre. Though the preliminary notification was proposed to acquire 805.21 guntas, and the final notification dated 28.7.1990, was issued only in respect of 562.34 guntas, it is not denied that the layout has been developed over an extent of only 49.03 acre and such 5 developed layout did not extend over the land in question. Therefore, the petitioners claim that Section 27 of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the 'BDA Act', for brevity) would require the Scheme to be implemented substantially within a period of five years from the date of final notification, for otherwise the Scheme lapses. In the present case on hand, the admitted development of the Scheme for the formation of the layout to an extent of 49 acres would not indicate that there is substantial implementation of the scheme. Consequently, the Scheme would lapse for the rigour of section 27 of the BDA Act is attracted. Consequently, section 36 of the BDA Act would also render the application of the LA Act as impermissible, in which event, the acquisition itself lapses. Even otherwise, the learned Senior Advocate would submit that when physical possession cannot be demonstrated to have been taken from the petitioners, the acquisition in any event would lapse by sheer efflux of time and hence, the question as to whether possession 6 has been taken is only with reference to the notification issued under Section 16(2) of the LA Act.
4. Insofar as the mahazar produced as Document No.3, as on 11.2.2016 which was never submitted along with the statement of objections or the additional statement of objections or the rejoinder filed by the respondents, it is noticed that it is a cyclostyled standard form with blanks filled in and is said to have been drawn up in the presence of five individuals, namely, Harish Kumar K.L., Rangappa, Muneppa, Rajanna and Yallappa, who purportedly have affixed their signatures. But actually, it is their names written in the respective column, because they are clearly readable.
The learned Senior Advocate would point out that there is no parentage indicated nor their addresses shown and their names being written instead of their signatures or thumb impressions being obtained cannot be established as on date as being of particular persons. As the individuals who are said 7 to have been present are neither identified nor can it be said with any credence that they may be traced to anybody to vouch for their presence as on the date the mahazar was drawn up. Therefore, to contend that the petitioners were divested of valuable property on the basis of this nebulous document cannot be accepted as having been established in the eye of law. The learned Counsel would also draw attention to several orders of this court wherein identical mahazars have been considered as being not sufficient evidence of having taken physical possession and therefore would submit that neither is the scheme implemented substantially nor has physical possession been taken, for the respondents to claim that even if the scheme has lapsed, the acquisition will not, in the light of the observations made by the Supreme Court in the case of Offshore Holdings Private Limited vs. BDA & Others (2011) 3 SCC 139.
It is further contended that insofar as certain lands of which possession had purportedly been taken and a notification 8 under Section 16(2) of the LA Act also having been published, it is on record that the State has subsequently issued notifications under Section 48(1) of the LA Act, which would also render the claim of the respondent of having taken physical possession as misleading and false. For the law is well settled that once the land vests in the State, the question of issuing a notification withdrawing from the acquisition would not arise. It is only if the physical possession had not been taken, that such notification could be issued. This is one other circumstance to indicate that the State itself has disclosed that it had not taken physical possession. For otherwise, it would have been possible to withdraw from acquisition. It is in this fashion that the learned Senior Advocate would emphasize that neither has the Scheme been implemented nor physical possession taken of the land in question and therefore, the entire proceedings ought to be set at naught and the notifications struck down.
9
5. While the learned counsel for the BDA as well as the Government Advocate in support of the Statement of objections filed by them and the documents produced, would seek to vehemently contest the petition.
6. However, from a reading of the statement of objections filed by the BDA, it is not clear as to whether there is admission of the petition averments or whether the statement of objections seek to refute the petition averments.
7. The State Government in its statement of objections had also admitted that possession has not been taken. However, subsequently, the BDA has sought to produce additional material to claim that possession has been taken.
8. In the light of these contentions and the material placed on record, the first question that arises for consideration before this court is, whether the Scheme has been substantially implemented.
10
Though there is claim that a large portion of the land, though acquired, has not been utilized for the development of the Scheme, on account of the litigation and pending cases, there is no material produced before this court to demonstrate the same. Out of a total extent of 562.34 acres, the layout has been developed over an area of 49 acres. On the face of it, this cannot be called as substantial implementation of the scheme.
Consequently, the Scheme has lapsed in terms of Section 27 of the BDA Act and the LA Act has no application in the light of Section 36 of the BDA Act. Consequently, the acquisition also would lapse even taking into account the observations of the Supreme Court in Offshore Holdings Private Limited, supra, that even if the scheme has lapsed, the acquisition would not.
9. Therefore, insofar as the next question whether physical possession has been taken is established by the BDA is concerned, as already pointed out by the learned Senior 11 Advocate, the mahazar which is cited as document no.3 along with the additional documents on 11.2.2016, it is evident that the said document is one of its kind, which has come in for consideration by this court in several matters. It is a cyclostyled form with blanks filled in and other blanks not filled in without the presence of the owners of the land or anybody representing the owners. It is said to have been drawn up in the presence of the individuals whose names appear without any other particulars as to their parentage or their addresses. Hence, as already opined by this court in several matters, the idea of executing documents is to use those documents when dispute arises before the court of law, to establish the occurrence of an event or other circumstances, which are intended to be evidenced by such a document. If the mahazar is taken as a document which requires to be proved and if the BDA is to examine the persons, who were said to be present when it was drawn up, it would be well neigh impossible to identify the very persons as being persons, in the 12 absence of other particulars which would be required and especially when the petitioners are being deprived of their valuable land. The said document, therefore, cannot be relied upon as material evidence to demonstrate that physical possession has been taken. Credence to be placed on the notifications issued under Section 16(2) of the LA Act also falls into insignificance when it is noticed that the lands which were subject matter of such notification under Section 16(2) of the LA Act has been withdrawn from the acquisition proceedings subsequently.
Therefore, the settled principle that once when the land vests in the State on taking physical possession, it would not be available for the State to withdraw the acquisition proceedings by issuance of a Notification under Section 48(1) of the LA Act is flouted, which would indicate that the State was acting on the premise that the physical possession has been taken and it was only nominal paper possession, for otherwise the State could not have, in its wisdom, issued such notification under section 13 48(1). This is yet another inexplicable circumstance which would not enable the BDA to demonstrate reliably that physical possession of the land in question has been taken. Consequently, it can safely be said that the Scheme has not been implemented substantially and that the physical possession of the land in question has not been taken.
The petition is allowed. The scheme is declared to have lapsed. The impugned annexures are quashed insofar as the petitioners are concerned.
Sd/-
JUDGE nv