Karnataka High Court
Bengaluru Development Authority vs Gautam Kamat Hotels Private Limited on 21 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 1863, 2021 (2) AKR 51
Bench: Ravi Malimath, M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 21ST DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT APPEAL No.311 OF 2013 (LA - BDA)
C/W. WRIT APPEAL No.4557 OF 2016
C/W. WRIT APPEAL No.4558 OF 2016
IN WRIT APPEAL No.311 OF 2013
BETWEEN:
1. BENGALURU DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
BENGALURU - 560 020,
REPRESENTED BY
ITS COMMISSIONER.
2. SPECIAL LAND ACQUISITION OFFICER,
BENGALURU DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
BENGALURU - 560 020.
... APPELLANTS
(BY SRI M N KUMAR, ADVOCATE)
2
AND:
1. GAUTAM KAMAT HOTELS PRIVATE LIMITED
A COMPANY INCORPORATED UNDER THE
PROVISIONS OF THE COMPANIES ACT,
HAVING ITS REGISTERED OFFICE AT
495/496, O.P.H. ROAD,
BENGALURU - 560 051
AND IS REPRESENTED BY ITS
CHAIRMAN, SRI L.R.KAMAT.
2. SRI L.R. KAMAT
SON OF LATE R.P. KAMAT,
AGED ABOUT 60 YEARS,
RESIDING AT "SRI RANGA" NO.4/4,
CRESCENT ROAD, HIGH GROUNDS,
BENGALURU - 560 001.
3. SMT. BHAGAVATHI L.KAMAT
WIFE OF SRI L. R. KAMAT,
AGED ABOUT 56 YEARS,
RESIDING AT "SRI RANGA" NO.4/4,
CRESCENT ROAD, HIGH GROUNDS,
BENGALURU - 560 001.
4. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
HOUSING AND URBAN DEVELOPMENT
DEPARTMENT, BENGALURU - 560 001.
... RESPONDENTS
(BY SRI RAMESH CHANDRA, ADVOCATE AND
SRI BASAVARAJU S.N., ADVOCATE FOR
CAVEATORS / RESPONDENT NOS.1 TO 3;
SRI KIRANKUMAR T.L., ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENT NO.4)
3
THIS WRIT APPEAL IS FILED UNDER SECTION 4
OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN THE WRIT PETITION
NOS.11022-24 OF 2011 (LA-BDA) AND
W.P.NOS.37965-70 OF 2011 DATED 08.08.2012.
IN WRIT APPEAL No.4557 OF 2016
BETWEEN:
BENGALURU DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BENGALURU - 560 020,
REPRESENTED BY ITS COMMISSIONER,
REPRESENTED BY SPECIAL LAND
ACQUISITION OFFICER - 2.
... APPELLANT
(BY SRI BIPIN HEGDE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY ITS SECRETARY,
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
M.S.BUILDING,
BENGALURU - 560 001.
2. SRI. K. KISHAN (K. SRIKISHAN)
SON OF K. PUTTARAMSA,
AGED ABOUT 75 YEARS,
RESIDING AT NO. 204Y,
4
3RD BLOCK, RAJAJINAGAR,
BENGALURU - 560 010.
... RESPONDENTS
(BY SRI KIRAN KUMAR T.L., ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENT NO.1;
SRI CHANDRASHEKAR PATIL AND
SRI S.K.KALEGOWDA, ADVOCATES FOR
RESPONDENT NO.2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4
OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN THE WRIT PETITION
NOS.53210 OF 2014 AND 53299 OF 2014 DATED
27.01.2016.
IN WRIT APPEAL No.4558 OF 2016
BETWEEN
BENGALURU DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BENGALURU - 560 020
REPRESENTED BY ITS COMMISSIONER.
NOW REPRESENTED BY SPECIAL LAND
ACQUISITION OFFICER.
... APPELLANT
(BY SRI BIPIN HEGDE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY,
DEPARTMENT OF HOUSING AND
5
URBAN DEVELOPMENT,
M.S. BUILDING,
BENGALURU-560 001.
2. SRI K. P. GHANASHAM
SON OF K.L. ANANTHPADMANABH SA,
AGED ABOUT 46 YEARS,
NO.75, RESIDENCY ROAD,
BENGALURU - 560 025.
... RESPONDENTS
(BY SRI KIRAN KUMAR T.L, ADDITIONAL GOVERNMENT
ADVOCATE FOR RESPONDENT NO.1;
SRI CHANDRASHEKAR PATIL AND
SRI S.K.KALEGOWDA, ADVOCATES FOR
RESPONDENT NO.2)
THIS WRIT APPEAL IS FILED UNDER SECTION 4
OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN WRIT PETITION
NO.53209 OF 2014 DATED 27.01.2016.
THESE WRIT APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 26.11.2019 COMING ON
THIS DAY, M.NAGAPRASANNA J., PRONOUNCED THE
FOLLOWING:-
JUDGMENT
Since common questions of law arise in all these appeals, namely, Writ Appeal Nos. 311 of 2013, 4557 of 6 2016 and 4558 of 2016, they were heard together and are disposed off by a common judgment.
2. Aggrieved by the order dated 8.8.2012 passed in Writ Petition Nos.11022-24 of 2011 and Writ Petition Nos.37965-970 of 2011 passed by the learned Single Judge, Writ Appeal No.311 of 2013 is filed. Aggrieved by the order dated 27.1.2016 passed in Writ Petition No.53210 of 2014 and Writ Petition No.53299 of 2014 connected with Writ Petition No.53209 of 2014 by the learned Single Judge, Writ Appeal Nos.4557 of 2016 and 4558 of 2016 are filed. All the appeals are preferred by respondent-Bengaluru Development Authority. The learned Single Judge while allowing the aforesaid writ petitions, has held that the improvement scheme for the formation of Jayaprakashnarayan Nagar 9th Stage Layout (hereinafter referred to as 'Scheme') is declared to have lapsed.
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3. The parties will be referred to as per their ranking in the writ petitions before the learned Single Judge.
4. Brief facts of the case are as follows:
In Writ Appeal No.311 of 2013, one Lakshman, was the owner of the property bearing Sy. No.31/1B of Doddakallasandra village, Uttarahalli Hobli, Bangalore South Taluk, to an extent of 4 acres. He had converted the land and formed 9 sites of different dimensions in 2 acres of land and the remaining 2 acres of land were retained by him. The petitioners purchased a total of 9 sites aggregating two acres of land in Sy.No.31/1B of Doddakallasandra village. The 1st writ petitioner was the owner of the property bearing Nos.1 to 3 and the 2nd petitioner was the owner of property bearing Nos.4 to 6 and the 3rd petitioner was the owner of property bearing 8 Nos.7 to 9, all of them having purchased under the registered sale deeds. These sites carved out of the land in Sy. No.31/1B of Doddakallasandra village were the subject matter of acquisition for the formation of a layout termed as "Jayaprakashnarayan Nagar 9th Stage Layout" in terms of the preliminary notification dated 17.11.1988 and the final notification dated 22.7.1991.
Since the petitioners were the subsequent purchasers, they were not aware of these proceedings and they came to know of it when their houses were sought to be demolished stating that they were in possession of the Bengaluru Development Authority (hereinafter referred to as 'the BDA').
5. Out of 433 acres acquired in Doddakallasandra village for the purpose of formation of Jayaprakashnarayan Nagar 9th Stage layout, it is seen that only 12 acres were utilised. In terms of Section 27 9 of the Bangalore Development Authority Act, 1976 (hereinafter referred to as 'BDA Act'), if the BDA fails to execute the Scheme within 5 years from the date of the publication in the Official Gazette of the declaration under Section 19(1) of the BDA Act, the Scheme shall lapse and the provisions of Section 36 shall become inoperative. After coming to know of the acquisition, the writ petitioners challenged the acquisition notification by filing Writ Petition Nos.11022-24 of 2011 and Writ Petition Nos.37965-970 of 2011 and sought for a declaration that the Jayaprakashnarayan Nagar 9th Stage Layout Scheme had lapsed and consequently, Sy No.31/1B did not vest with the Authority. The learned Single Judge formulated the following questions:
(i) Whether the possession of the
lands was taken?
(ii) Whether the improvement
Scheme published on 29.06.1988 is
substantially implemented?
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6. Answering question No.1 as to whether the possession of land was with the BDA or with the writ petitioners, the learned Single Judge held that the mahazars are not reliable, as the land owners have not signed the mahazar. It is not forthcoming as to from whom the possession was taken and the signatories to the mahazar are not identifiable. The learned Single Judge further held that the possibility of obtaining the signatures of some persons visiting the office cannot be ruled out. Since the possession of the lands remains with the petitioners, mere publication of the notification under Section 16(2) of the Land Acquisition Act, 1894 (hereinafter referred to as 'LA Act') as evidence of the fact of taking the possession, cannot be accepted.
Regarding the 2nd question with regard to substantial implementation of the Scheme, the learned Single Judge observed that out of 1,111 acres and 36¾ 11 guntas acquired, only 329 acres were utilized. So far as Doddakallasandra village is concerned, which was a part of the same acquisition, out of 241 acres and 20 guntas, only 12 acres were utilised. Following the law laid down by the Apex Court and this Court, the learned Single Judge, allowed the writ petitions on 8.8.2012 and declared that the Scheme and the acquisition proceedings had lapsed insofar as it pertains to the lands of the petitioners. Feeling aggrieved, the respondent-BDA has preferred the instant writ appeal.
7. In Writ Appeal No.4557 of 2016, one P.M. Abbaiah Naidu was the absolute owner of the land measuring 1 acre 35 guntas in Sy. No.32/5 of Doddakallasandra village, Uttarahalli Hobli. P.M. Abbaiah Naidu was also the owner of the land in Sy No.32/6 measuring 1 acre 4 guntas of the said village, both of 12 which were sold to the petitioner by two registered sale deeds, both dated 23.12.1999.
8. The respondent-BDA issued a preliminary notification on 17.11.1988 under Section 17(1) of the BDA Act, proposing to acquire 1,333 acres and 34 guntas of lands situated in nine different villages, namely Konanakunta, Raghuvanahalli, Alahally, Thippasandra, Vajarahally, Raghuvanapalya, Doddakallasandra, Arekere and Hulivamavu, for the purpose of formation of a residential layout called as 'Jayaprakashnarayan Nagar 9th Stage Layout'. In terms of the said notification, both the properties of the writ petitioner measuring 1 acre 35 guntas in Sy.No.32/5 and 1 acre 4 guntas in Sy. No.32/6 were notified and the name of P.M. Abbaiah Naidu, the vendor of the petitioner, who was shown as khatedar of the lands.
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9. The declaration under Section 19(1) of the BDA Act came to be issued on 22.7.1991 reducing the notified lands from 1,333 acres 34 guntas to 1,111 acres and 36¾ guntas, which implied that 222 acres were left out. Again the properties belonging to the petitioner were notified in the name of the original owner, Abbaiah Naidu, who was shown as the khatedar. An award notice was said to have been issued in respect of the schedule properties owned by the petitioner, but no compensation was paid either to petitioner or Abbaiah Naidu.
10. The respondent-BDA claims to have taken possession of the schedule properties as on 30.5.1998 and a mahazar to that effect was drawn, pursuant to which, a notification was issued under Section 16(2) of the LA Act. According to the 14 petitioner, though the notification pursuant to the mahazar drawn was issued, no physical possession of the properties was taken by the BDA and the petitioner continued to be in possession of the properties.
11. The petitioner contends that the declaration issued under Section 19(1) of the BDA Act was said to have been challenged by the other land owners in Writ Petition No.4046 of 1993 and connected cases. The final notification was quashed by an order dated 27.9.1996, on the ground that the notification had been issued without obtaining sanction of the Scheme by the State Government, which was mandatory. This Court granted liberty to the BDA to proceed with the acquisition, in accordance with law, within a period of one year. The BDA and the State Government chose not to prefer any appeal against the order of the learned Single Judge and accepted the same, which became 15 final. Some of the writ petitioners preferred Special Leave Petition before the Apex Court in Civil Appeal No.5772 of 1997. The Apex Court by its order dated 27.2.2002 allowed the civil appeal observing that the State Government and the BDA had not filed any appeal against the order of the learned Single Judge and have accepted the said judgment. In effect, the order of the learned Single Judge stood affirmed and liberty was reserved to the BDA to proceed with the acquisition proceedings.
12. The issue regarding the formation of Jayaprakashnarayan Nagar 9th Stage layout in terms of the final notification dated 22.7.1991 became the subject matter of writ petitions in Writ Petition Nos.11022-24 of 2011 and Writ Petition Nos.37965-970 of 2011, wherein this Court considering the fact that there is no substantial implementation of the Scheme in 16 its entirety, held that the acquisition proceedings had lapsed insofar as the lands pertaining to the petitioners therein are concerned and the acquisition proceedings had become inoperative. Particularly, insofar as Doddakallasandra village is concerned, this Court observed that out of 241 acres and 20 guntas of land acquired, only 12 acres were utilised.
It is not the case of the petitioner that the BDA has formed the roads, erected the poles, laid the culverts, formed the sites, etc. This Court concluded that the project had not been implemented and declared that the Scheme and the acquisition had lapsed insofar as the lands belonging to Gautam Kamath Hotels Private Limited in Writ Petition Nos.11022-24 of 2011 and Writ Petition Nos.37965-970 of 2011.
The lands of the petitioner were also acquired for the same project/Scheme namely J.P. Nagar 9th stage and would fall in the same footing as that of the order 17 passed in the case of Gautam Kamath Hotels Private Limited (Supra). The writ petitioner challenged the acquisition proceedings in Writ Petition Nos.53210 of 2014 and 53299 of 2014 seeking to quash the final notification dated 22.7.1991 and the declaration made under Section 19(1) of the BDA Act insofar as it pertains to the properties owned by the writ petitioner. The learned Single Judge allowed the writ petitions on 27.1.2016 on the ground that the mahazar that was drawn at the time of acquisition could not be sustained as the mahazar was a nebulous document and would not answer to the description of a mahazar having taken possession. The learned Single Judge observed that notification is issued under Section 16(2) of the LA Act, even though no such physical possession was taken and therefore, it would not be open for the BDA to claim that actual physical possession was taken. The mahazar is a printed document, in which many 18 blanks have not even been filled up and the boundaries of the property is not shown, nor the names of witnesses find a place. The learned Single Judge further observed that if the BDA contends that possession had been taken, it was incumbent on the BDA to demonstrate that the Scheme has been substantially implemented and that there was an order of stay in respect of the present petition schedule lands. Therefore, the learned Single Judge concluded that there is no indication that there has been substantial implementation of the Scheme. In terms of Section 27 of the BDA Act, if the Scheme is not implemented within a period of five years, the Scheme would lapse and therefore, held that there is no substantial implementation of the Scheme insofar as it pertains to the lands of the petitioners and accordingly, allowed the writ petitions.
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13. In Writ Appeal No.4558 of 2016, one Sri Beerappa and his wife Beeramma were the owners of land comprising 3 acres 14 guntas in Sy. No.33/1 of Doddakallasandra Village, Bangalore South Taluk. The writ petitioners purchased 3 acres 14 guntas of land from Beerappa and Beeramma through the registered sale deed dated 1.5.1986 and in pursuance thereof, the writ petitioners were in absolute possession of the said property. It is contended that the land of the petitioner is identically situated as that of the land in the connected appeals and the same sequence of events are pleaded to contend that possession has remained with the petitioner. That, the Layout having not been formed except to an extent of 329 acres out of a total extent of 1,111 acres 36¾ guntas, the implementation of the Scheme having miserably failed and the acquisition proceedings having lapsed insofar as the petitioners' lands are concerned, the petitioners 20 approached this Court by filing Writ Petition No.53209 of 2014 seeking for a similar relief as has been granted by this Court in other similar cases. As stated, the writ petition was allowed by the learned Single Judge and the Scheme was declared to have lapsed.
14. In terms of the aforementioned facts, the following points that would arise for our consideration in these appeals are:
1. Whether the possession of the lands were taken by BDA ?
2. Whether the Jayaprakashnarayan Nagar 9th Stage Scheme was substantially implemented ?
15. Re. Point No.1:
Learned Counsel for the 1st respondent-BDA submits that certain inadvertent discrepancies regarding the dates mentioned in the notification issued under 21 Section 16(2) cannot take away the legal effect of taking possession of the lands, which is evident from the mahazar. It is his contention that even in the absence of a Section 16(2) notification, the factum of taking possession cannot be negated since the BDA has placed sufficient material on record to show that the possession of the lands in question were, in fact, in the possession of BDA. The absence of names and addresses of the witnesses in the mahazar cannot invalidate the mahazar. It is his further vehement contention that in the facts and circumstances of the case, the BDA has substantially implemented the Scheme.
To buttress his submission, the learned Counsel would seek to place reliance on the judgment of the Hon'ble Supreme Court in case of BANDA DEVELOPMENT AUTHORITY, BANDA, VS. MOTI LAL 22 AGARWAL AND OTHERS reported in (2011) 5 SCC 394, particularly to paragraphs 19 and 38, which read as follows:
" 19. In matters involving challenge to the acquisition of land for public purpose, this Court has consistently held that delay in filing the writ petition should be viewed seriously and relief denied to the petitioner if he fails to offer plausible explanation for the delay. The Court has also held that the delay of even few years would be fatal to the cause of the petitioner, if the acquired land has been partly or wholly utilised for the public purpose.
38. In the light of the above discussion, we hold that the action of the State authorities concerned to go to the spot and prepare panchnama showing delivery of possession was sufficient for recording a finding that actual possession of the entire acquired land had been taken and handed over to BDA. The utilisation of the major portion of the acquired land for the public 23 purpose for which it was acquired is clearly indicative of the fact that actual possession of the acquired land had been taken by BDA. Once it is held that possession of the acquired land was handed over to BDA on 30-6-2001, the view taken by the High Court that the acquisition proceedings had lapsed due to non-compliance with Section 11-A cannot be sustained. "
16. The learned Counsel would further seek to place reliance on the judgment of the Hon'ble Supreme Court in case of PRAHLAD SINGH AND OTHERS VS. UNION OF INDIA AND OTHERS reported in (2011)5 SCC 386 which followed Banda Development Authority's case to contend that once possession is taken, the land would vest with the BDA.
17. The learned Counsel would further rely on the judgment of the learned Division Bench of this Court in the case of THE MYSORE URBAN DEVELOPMENT 24 AUTHORITY AND ANOTHER VS. CHIKKABORAIAH AND OTHERS REPRESENTED BY L.RS. reported in ILR 2011 KAR 1874, at paragraph No.9, which reads thus:
" 9. The material on record would clearly show that final Notification was passed on 25.6.1988. Section 27 of the Act reads as follows:
"27. Authority to execute the scheme within five years: where within a period of five years from the date of publication in the Official Gazette of the declaration under sub- Section (1) of Section 19, the Authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative."
It is clear on perusal of the above said provisions of Section 27 of the Act that entire scheme will lapse if there is no substantial 25 compliance in executing the scheme and the order passed by the Learned Single Judge to the effect that scheme has lapsed only insofar as it relates to the land of the petitioner is clearly contrary to the provisions of Section 27 of the Act. It is well settled that in view of the decision of this Court in K. Sathyanarayana, Since Dead by his LRs. v. State of Karnataka [ W.A. Nos. 2106/2007 C/w 1944/2007 decided on 28.1.2008.] , merely because there is dispute about taking possession and implementing the scheme insofar as the land of the Writ Petitioner is concerned, scheme will not lapse as the scheme would lapse when there is no substantial implementation of the scheme. Having regard to the particulars filed along with the affidavit of the Commissioner of the Appellant -- Authority and having regard to the allotment register which is produced, we are satisfied that there is substantial compliance with the scheme as the layout has been formed, allotment of civic amenity sites have been made and sites of various 26 dimensions have been formed in an area of 240 acres out of 260 acres. Therefore, the order passed by the Learned Single Judge cannot be sustained and liable to be set aside. Accordingly, we pass the following:
ORDER The Writ Appeal is allowed. The order passed by the Learned Single Judge in W.P. No. 31712/2002 dated 23.7.2003 is set aside and W.P. No. 31712/2002 is dismissed."
18. In terms of the aforementioned judgments, it is urged by the learned Counsel for the BDA that once possession having been taken and the Scheme implemented, the learned Single Judge could not have reversed the same on the ground that the Scheme insofar as it pertains to the lands of the petitioners have lapsed.27
19. In this context, it is necessary to notice the notification dated 1.6.1998 depicting that BDA has taken possession of the lands mentioning the survey numbers to the extent indicated therein and the respective dates of possession in months and years. Though the notification was issued on 1.6.1998, for certain lands, the BDA has taken possession after the said date is an impossible act that can be done. There cannot be taking possession on subsequent months and years notified under the notification of having taken possession in terms of section 16(2) of the LA Act.
20. It would be useful to extract this impossible act of BDA in several cases stated in the notification dated 1.6.1998, which reads as follows:
Sl. LAC No. Sy.No. Extent Date of
No. taking
possession
2. 44/97-98 28/6 1 acre of 13 guntas 29.7.1998
3. 45/97-98 28/7 13 guntas 29.7.1998
14. 494/91-92 91 04 acres 29.7.1998
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15. 495/91-92 92 04 acres 05.1.1999
17. 382/91-92 28 22 guntas 30.7.1998
25. 22/97-98 10/3 02 acres 20 guntas 18.6.1998
26. 23/97-98 11/1 24 guntas 18.6.1998
27. 36/97-98 84/1 1 acre 30 guntas 18.6.1998
28. 37/97-98 84/3 02 acres 18.6.1998
29. 321/91-92 91 5 acres 29.7.1998
Thus, it can be seen from the notification dated 1.6.1998, possession of the land was taken in July 1998 and also in January 1999. This itself is enough to conclude that the possession was not taken on 1.6.1998.
21. The next evidence of taking possession according to the BDA is the mahazar, which was drawn on 30.5.1998 (Annexure-R2) and Section 16(2) notification (Annexure-R3) which shows that possession was taken on 10.5.1998. As we have indicated hereinabove, because of these impossible acts and self destructive contradictions that are made in the 29 annexures, no credence can be attached to such notification issued under Section 16(2) of the LA Act.
22. Perusal of the copy of the mahazar (Annexure-R2) would indicate that it is a cyclostyled form, some columns are filled in and some are just left blank. It does not contain the names and particulars of the persons whose signatures are taken at the time of taking possession. The purpose of drawing the mahazar and the affixture of signatures thereon by the independent witnesses who are present on the spot, is only to establish that the possession was taken.
When the witnesses' names and addresses were not furnished and merely their signatures were found on the mahazar, this Court is unable to accept that the respondents have done anything equivalent to taking effective possession.
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23. The judgments relied on by the learned Counsel for the BDA are distinguishable on facts. With reference to the factum of taking possession of the land that is acquired, the Apex Court in case of BANDA DEVELOPMENT AUTHORITY, BANDA, VS. MOTI LAL AGARWAL AND OTHERS reported in (2011) 5 SCC 394, at paragraph No.37, has held as follows:
" 37. The principles which can be culled out from the above noted judgments are:
(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.31
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession.
Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
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(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken."
This was again followed in the case of PRAHLAD SINGH AND OTHERS VS. UNION OF INDIA AND OTHERS reported in (2011)5 SCC 386. The Apex Court in the said judgment, at paragraph 19, has held as follows:
"19. The same issue was recently considered in Banda Development Authority vs. Moti Lal Agarwal decided on 26.04.2011. After making reference to the judgments in Balwant Narayan Bhagde vs. M.D.Bhagwat, Balmok and Khatri Educational and Industrial Trust vs. 33 State of Punjab, P.K.Kalburqi vs. State of Karnataka, NTPC Ltd., vs. Mahesh Dutta, Sita Ram Bhandar Society vs. Government of NCET of Delhi, Omprakash Verma vs. State of A.P. and Naharsingh vs. State of U.P. this Court laid down the following principles: (Banda Development Authority case, SCC Page 411, para 37)
i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
ii) If the acquired land is vacant,
the act of the State authority concerned
to go to the spot and prepare a
panchnama will ordinarily be treated as sufficient to constitute taking of possession.
iii) If crop is standing on the acquired land or building/structure exists,
mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has 34 cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken."
In terms of the afore-extracted judgments, it is evident that the BDA has not taken possession of the lands belonging to the petitioners.
24. It is also useful to refer to the statement of objections filed by BDA before the learned Single Judge in the writ petitions. There is no whisper in the entire statement of objections as to how the possession was taken and from whom the possession was taken of the lands in question. Thus, neither the mahazar nor the statement of objections would indicate that the owners of the lands in question were ever called upon to hand 35 over possession or to be present when the mahazar was drawn. The reliance placed by the BDA on the judgment in case of Banda Development Authority (Supra) would not come to its aid, as in the said case, the said Authority, after taking the possession of the acquired lands, formed the roads, constructed nalas, laid down pipelines, erected electrical poles with lights fixed, carved out plots and allotted them to the people belonging to different categories. It is on those facts, the Apex Court held that the possession was complete and the Scheme have been completed.
25. Even in the statement of objections, it is not the case of the respondents that the land in question was developed by BDA in any way after 30.05.1998 on which date they claim to have taken the possession of the lands belonging to the petitioners. 36
26. Thus, in terms of the table which we have hereinbefore extracted, which contains information regarding the notification dated 1.6.1998, it is impossible to accept that the BDA had taken possession of the property.
Thus, we answer point No.1 in favour of the writ petitioners.
27. Re. Point No.2:
In order to examine as to whether the Jayaprakashnarayan Nagar 9th Stage Layout Scheme was substantially implemented, it is necessary to refer to the relevant statutory provisions of Section 27 of the Act, which reads thus:
"Section 27: Authority to execute the Scheme within five years
- Where within a period of five years from the date of the publication in the Official Gazette of the declaration under sub-section (1) of Section 19, the authority fails 37 to execute the Scheme substantially, the Scheme shall lapse and the provisions of Section 36 shall become inoperative."
Thus, it is clear that the improvement Scheme has to be implemented within five years. If there is no substantial execution of the Scheme within the said period, the Scheme shall lapse and the provisions of Section 36 shall become operative.
28. The land utilization certificate is produced before us, pertaining to Jayaprakashnarayan Nagar 9th Stage Layout, which reads as follows:
Extent of Land Notified : 1118 Acres 9.8 Guntas Extent of land Handed over to : 262 Acres 14 Engineering Section Guntas Extent of Land utilized for Formation : 179 Acres 31 of Layout Guntas Total No. of Sites Formed : 3078 Note :- Details are as per information available in this Office.38
In terms of the afore-extracted chart, out of the 1118 acres and 9.8 guntas of land, only 262 acres and 14 guntas have been handed over to engineering section. Out of which, only 179 acres and 31 guntas were utilised for formation of layout and total number of sites is 3078. In the case of Doddakallasandra village, the situation is still worse. Out of total 241 acres and 20 guntas, only 12 acres were utilized. Thus, by no stretch of imagination, it can be held that the Scheme namely, "Jayaprakashnarayan Nagar 9th Stage Layout" is substantially implemented. It is not even implemented to the tune of 50 percent even after the lapse of 29 years of issuance of final notification.
29. Insofar as the judgment relied on by the BDA in the case of Mysore Urban Development Authority (Supra) also would not come to his aid as in the said 39 case, 240 acres out of 260 acres acquisition of lands had been developed by the Mysore Urban Development Authority. It is in those circumstances, the learned Division Bench was of the view that there was substantial compliance. In view of our finding that there is not even 50 percent of compliance in the present case, the judgment of the learned Division Bench would not be applicable.
Hence, we answer point No.2 in favour of writ petitioners.
30. The learned Single Judge has considered the case in its entirety and on thorough examination of the facts, has held that the Scheme had lapsed insofar as it pertains to the lands of the petitioners. Consequently, the acquisition proceedings insofar as the lands of the petitioners are concerned had also lapsed. In our view, 40 the order of the learned Single Judge does not warrant any interference.
31. For the aforementioned reasons, the appeals being devoid of merit are dismissed.
There shall be no order as to costs.
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JUDGE Sd/-
JUDGE Cs/-
CT:MJ