Karnataka High Court
Smt Chowdamma @ Pillamma vs State Of Karnataka on 2 February, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.35582/2018 (LA-RES)
BETWEEN:
1. Smt. Chowdamma @ Pillamma
Aged about 80 years
W/o late Sri Patel Byrappa
Residing at No.265, Pantharapalya
Kengeri Hobli, Bangalore South Taluk
Bangalore-560 039
Benefit of Senior Citizen not claimed
2. Sri Byrappa
S/o Late Sri Patel Byrappa
Aged about 62 years
Residing at No.382, High Road
2nd Phase, Ideal Homes
Rajarajeshwari Nagar
Bangalore-560 098
3. Dr. B. Pradeep Kumar
S/o late Sri Patel Byrappa
Aged about 32 years
Residing at No.382, High Road
2nd Phase, Ideal Homes
Rajarajeshwari Nagar
Bangalore-560 098
...Petitioners
(By Sri Udaya Holla, Senior Counsel for
Sri Vivek Holla, Advocate)
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AND:
1. State of Karnataka
Represented by its Principal Secretary
Revenue Department
Vidhana Soudha
Bangalore-560 001
2. Deputy Commissioner
Bangalore District
Khandaya Bhavan
K.G. Road, Bangalore-560 008
3. Special Land Acquisition Officer
3rd Floor, Vishweshwaraiah Tower
Dr. Ambedkar Veedhi Road
Bangalore-560001
4. ITI Employees Housing Co-operative Society Ltd.,
Dooravaninagar
Bangalore-560 016
Represented by its Secretary
...Respondents
(By Sri A.C. Balaraj, AGA for R1 to R3;
Sri G.L. Vishwanath, Advocate for R4;
Sri S. Rajashekar, Advocate for proposed respondent on
I.A.No.2/2021)
This Writ Petition is filed under Articles 226 & 227 of the
Constitution of India, praying to issue:
(i) A declaration that the acquisition of the schedule property
bearing Sy.No.23/4, measuring 23 guntas, situated at
Nayandanahalli, Kengeri Hobli, Bangalore South Taluk, Bangalore
District and bearing VP Khatha No.1148/13 and 1148/13/1 and
presently bearing Bruhat Bangalore Mahanagara Palike Municipal
No.23/4/1148/13 and Ward No.131 of BBMP, has lapsed;
(ii) A writ of certiorari or any other writ or order quashing the
preliminary notification bearing No.LAQ(1) CR.681/1983-84 dated
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22.02.1985 published in Karnataka Gazette dated 25.02.1985
issued by the 2nd respondent (Annexure-D) and final notification
bearing No.RD 31 AQB 85 dated 27.02.1986 published in the
Government Gazette dated 28.02.1986 issued by the 1st
respondent (Annexure-E) and the award dated nil in LAC 643/85-86
and LAC 644/85-86 passed by the 3rd respondent (Annexure-F);
(iii) Alternatively, direct the respondents to de-notify Schedule
Property; and
(iv) Direct the respondents to pay costs of this petition and grant
such other further reliefs, as are just.
This Writ Petition having been heard and reserved on
30.07.2021, coming on for Pronouncement of Order this day, the
Court made the following:-
ORDER
In this petition, petitioner seeks a declaration that the acquisition of the schedule property bearing Sy.No.23/4 measuring 23 guntas situated at Nayandanahalli, Kengeri Hobli, Bangalore South taluk, Bangalore district bearing V.P.Khata No. 1148/2013 and 1148/13/1 and presently bearing BBMP Municipal No.23/4/1148/13 in ward No.131 of BBMP has lapsed and for quashing of the acquisition notifications and award and for other reliefs.
2. Briefly stated, the various contentions in the petition are as under:-
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Petitioners claim that the petition schedule property was purchased by petitioner No.1 vide registered sale deed dated 01.02.1960 and that the khata stands in the name of the petitioners who are paying taxes in respect of the schedule property. On 04.04.1985, the schedule property as well as Sy.No.23/2 belonging to Patel Byrappa husband of petitioner No.1 and other lands were notified for acquisition by issuing a preliminary notification under Section 4 of the Land Acquisition Act, 1894 (for short 'the L.A.Act'). It is averred that though the petitioners and her husband opposed the said acquisition, the respondents issued a final notification dated 27.02.1986 under Section 6(1) of the L.A.Act for the purpose of acquiring the lands including the schedule property in order to form a residential layout by the 4th respondent - ITI society.
3. Petitioner No.1 and her husband challenged the said acquisition in W.P.No.1063/1986 and W.P.No.10631/1986 before this Court during the pendency of which, an award dated 03.06.1988 was passed by the SLAO which was also challenged by the petitioners by amending the petitions 5 accordingly. By final order dated 10.04.1996, learned Single Judge dismissed the said W.P.No.1063/1986 and W.P.No.10631/1986, aggrieved by which, petitioner No.1 and her husband filed writ appeals in W.A.No.6804/1996 and W.A.No.6805/1996, which were also dismissed by the Hon'ble Division Bench vide final order dated 12.04.2006.
4. It is contended that despite the aforesaid proceedings, the entire schedule property being a built up area is in possession and enjoyment of the petitioners and their tenants; the notification dated 06.01.1992 issued by the respondents under Section 16(2) of the L.A.Act also shows that the schedule property was not taken possession by the respondents, since the same is not found in the said notification.
5. Petitioners contend that they have leased out a portion of the schedule property in favour of the Lakshmi Gas Agency since 1997 and relevant documents including lease deeds, statutory registrations, permissions, photographs etc., 6 have been produced by the petitioners. It is contended that the petitioners and their tenants have always been in possession and enjoyment of the schedule property for more than five decades and they have never been disposed from the schedule property by the respondents who have never taken over possession of the same from the petitioners. It is also contended that the petitioners have not received any compensation in respect of the award passed in respect of the schedule property. It is therefore contended that by virtue of compensation having not been paid to the petitioners and possession of the schedule property having not been taken from the petitioners, prior to coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 'the said Act of 2013'), the entire acquisition proceedings in respect of the schedule property has lapsed under Section 24(2) of the said Act of 2013. Under these circumstances, petitioners have filed the present petition challenging the acquisition proceedings and seeking appropriate reliefs in this regard. 7
6. The respondents 1 to 3 have not filed any statement of objections to the petition. The respondent No.4 - ITI society has filed its statement of objections and has contested the petition putting forth the following contentions:-
(i) The various contentions and claim put forth by the petitioners have been denied by 4th respondent -
society which was inter alia contended that possession of the schedule property was taken over on 20.02.2003, pursuant, to which notification dated 04.03.2003 was issued under Section 16(2) of the L.A.Act; in pursuance thereof, possession of the schedule property was handed over to the 4th respondent - society on 17.09.2003. It is contended that in view of the dismissal of the earlier rounds of litigation in W.P.No.10630-31/1986 and W.A.No.6804- 6805/1996 by the Hon'ble Division Bench, the present petition is barred by res judicata. It is also contended that the petition is barred by delay and latches; so also, the twin conditions of payment of compensation 8 and taking of possession have been satisfied by the respondents and consequently, in the light of the decision of the Apex Court in the case of Indore Development Authority vs. Manohal lal - (2020) 8 SCC 129, petitioners are not entitled to place reliance upon Section 24(2) of the said Act of 2013. It is also contended that Section 24(2) applies only to pending proceedings and not to the facts of the instant case.
(ii) It is therefore contended by the 4th respondent that petitioners 2 and 3 who are said to have acquired the schedule property under gift deeds of the year 2013 do not have any locus standi to maintain the present petition; so also, petitioners are guilty of suppression of material facts and are not entitled to any relief in the present petition. Thus, by denying and repudiating the various allegations and claim made in the petition, the 4th respondent has sought for dismissal of the petition. 9
7. The petitioners have filed their rejoinder to the statement of objections of the 4th respondent. In the said rejoinder, in addition to controverting and denying the various contentions put forth in the statement of objections of 4th respondent, petitioners have reiterated the contentions put forth by them in the petition. It is contended that the documents relied upon by the 4th respondent are concocted documents while the documents produced by the petitioners clearly indicate that the schedule property is in possession and enjoyment of the petitioners and not the 4th respondent. The petitioners have leased out a portion of the schedule property in favour of its lessee / tenant - M/s.Rashmi Indane Gas Distributors who is carrying on Gas Agency business in the said portion from 1997 onwards after obtaining necessary permissions, clearances from the statutory authorities. It is pointed out that no mahazar or other documents have been produced to establish that possession of the schedule property was taken over by the respondents from the petitioners; on the other hand, the layout plan approved by the 10 BDA produced as Annexure-S indicates that the schedule property was not included in the layout formed by the 4th respondent - society; so also, the lessee / tenant - M/s.Rashmi Indane Gas Distributors has instituted a suit in O.S.No.5519/2018 against the 4th respondent - society herein and there is an order temporary injunction passed in favour of the said agency against the 4th respondent - society which is subsisting even as on today. It is contended that even the documents produced by the 4th respondent - society indicate that the entire compensation amount has not been deposited by the 4th respondent - society and that without establishing that the compensation in respect of the schedule property was deposited by the 4th respondent - society, the mandatory requirements of making deposit and taking of possession as contemplated in Section 24(2) of the said Act of 2013, having not been complied with, the acquisition proceedings in respect of the schedule property have stood lapsed.
8. Petitioners have also contended that in the light of the previous rounds of litigation before this Court and 11 complete inaction on the part of the respondents to comply with the mandatory requirements of Section 24(2) of the said Act of 2013 even after disposal of W.A.No.6804/1996 on 12.04.2006, the present petition having been filed in 2018, only when the 4th respondent attempted to interfere with the petitioners and their lessee / tenant's possession and enjoyment of the schedule property cannot be termed to be barred by delay and laches, particularly in view of Section 34(2) of the said Act of 2013. It is contended that all documents including revenue records etc., clearly establish the possession of the petitioners and their tenants / lessees over the schedule property. It is also contended that the petitioners are not re-agitating any concluded or stale claim and reliance placed by the 4th respondent on the decision of the Apex Court in Indore Development Authority's case is untenable and liable to be rejected.
9. It is therefore contended that there is no merit in any of the contentions urged by the 4th respondent and that the petition deserves to be allowed.
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10. It is relevant to note that the aforesaid M/s.Rashmi Indane Gas Distributors has filed I.A.2/2021 seeking impleadment to the present petition inter alia contending that the impleading applicant is a lessee / tenant of a portion of the schedule property from the year 1997 onwards, having taken the said portion on lease from petitioner No.1. It is contended that the impleading applicant has always been in possession and enjoyment of the schedule property from 1997 onwards and is running a Gas Agency after obtaining all necessary, clearances, permissions etc., from the Government and statutory authorities. The impleading applicant has fully supported the claim of the petitioners and has contended that the acquisition proceedings have been abandoned by the respondents and that the same has stood lapsed under Section 24(2) of the said Act of 2013.
11. Heard Sri.Uday Holla, learned senior counsel for the petitioners and Sri.G.L.Vishwanath, learned senior counsel for the 4th respondent -Society and learned AGA for 13 respondents 1 to 3 and the learned counsel for the impleading applicant and produced by the material on record.
12. Before adverting to the rival contentions, it is necessary to refer to the decision of the Apex Court in Indore Development Authority's case (supra), wherein it is held as under:-
"363. In view of the aforesaid discussion, we answer the questions as under:
1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of proceedings. Compensation has to be determined under the provisions of Act of 2013.
2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.
3. The word 'or' used in Section 24(2) between possession and compensation has to be read as 'nor' or as 'and'. The deemed lapse of land acquisition 14 proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.
4. The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court. The consequence of non-
deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to 15 the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894.
5. In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.
6. The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).
7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/ memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).
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8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.
9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition."
13. In the aforesaid decision, the Apex Court has held that in cases where the award was passed more than five years prior to coming into force of the Act of 2013, which came into force on 01.01.2014, the acquisition proceedings would 17 stood lapsed if the two fold/ twin requirement contemplated under Section 24(2) of the said Act of 2013 have not been complied with / fulfilled by the respondents; the said twin requirements include deposit of the compensation as per the award and taking of possession by the respondents under Section 16 of the L.A.Act. The Apex Court has also pointed out that the mode of taking of possession under Section 16 of the L.A.Act is by drawing of an inquest report / memorandum/ mahazar and that once there is material to establish the award amount has been deposited and possession is taken by the respondents, the land would stand vested with the respondents and the question of the acquisition proceedings lapsing under Section 24(2) of the said Act of 2013 does not arise.
14. It is relevant to state that the aforesaid twin requirement contained in Section 24(2) of the said Act of 2013, as enunciated by the Apex Court in Indore Development Authority's case (supra), is essentially a question of fact and depends on the facts and circumstances 18 in a given case. In my considered opinion, a cumulative reading of the entire material on record, clearly establishes that the respondents have never took possession of the schedule property from the petitioners and that the petitioners and their tenant i.e, M/s.Rashmi Indane Gas Distributors, the impleading applicant who have always been in long, continuous uninterrupted possession and enjoyment of the schedule property.
15. The various circumstances which lead to the inescapable conclusion that it is the petitioners who are in possession and enjoyment of the schedule property and that neither the respondents 1 to 3 nor the 4th respondent ever took possession of the schedule property from the petitioners and / or their lessee / tenant are as under:-
(i) The respondents have not produced the mahazar / inquest report / memorandum as held by the Apex Court in Indore Development Authority's case (supra), to establish that they took possession of the schedule property;19
(ii) All revenue records, tax paid receipts and other documents stand in the name of the petitioners in respect of the schedule property;
(iii) The documents produced by the petitioners and their tenant / lessee - M/s.Rashmi Indane Gas Distributors clearly indicate that the petitioners and the aforesaid tenant / lessee have been in possession and enjoyment of the schedule property;
(iv) The BDA approved layout plan issued in favour of the 4th respondent - society in relation to the layout formed out of the acquired lands clearly indicates that the schedule property was never the part and parcel of the said layout formed by the 4th respondent - society thereby indicating that the society did not take possession of the schedule property.
(v) Except a notification dated 04.03.2003 (Annexure-R1), no other document is produced to show that respondents 1 to 3 took possession of the schedule property from the petitioners; the said document which 20 purports to indicate that possession was said to have been taken on 20.02.2003 is also not corroborated by any other material viz., inquest report / mahazar/ memorandum and consequently, no reliance can be placed on the said notification by the respondents.
(vi) So also, the aforesaid notification dated 04.03.2003 is a post-litem document which is said to have come into existence during the pendency of W.A.No.6804/1996 and W.A.No.6805/1996 which was disposed of 12.04.2006; in the said proceedings or the said order there is no reference to the aforesaid notification and on this ground also, in the absence of any corroborative material, in particular mahazar, revenue records, etc. the said notification dated 04.03.2003, cannot be made the basis to come to the conclusion that the respondents took possession of the subject lands from the petitioners. 21
(vii) The specific contention urged by the petitioners is that since the twin/two fold requirement of paying / depositing compensation and taking possession of the subject lands by the respondents more than five years prior to 01.01.2014 when the said Act of 2013 came into force have not been complied with or fulfilled by the respondents, the petitioners are entitled to the benefit of Section 24(2) of the said Act of 2013 which contemplates that the entire acquisition has stood lapsed; in this context it is relevant to state that in the absence of any finding recorded in the earlier rounds of litigation with regard to possession having been taken by the respondents from the petitioners coupled with the fact that W.A.No.6804/1996 and W.A.No.6805/1996 was disposed of 12.04.2006 prior to 01.01.2014 as stated supra, the earlier proceedings cannot be said to come in the way or operate as res judicata or constructive res judicata or a bar for the petitioners to maintain the present petition and 22 consequently, the said contention of the respondents based on the earlier round of litigation cannot be accepted.
16. Insofar as the contention urged by the 4th respondent with regard to the present petition being a stale and time barred claim / proceedings which are concluded by the earlier round of litigation as held in Indore Development Authority's case supra is concerned, it is significant to state that undisputedly, the said earlier proceedings do not render any finding with regard to possession which is one of the mandatory requirements under Section 24(2) of the said Act of 2013 which came into force only on 01.01.2014 thereby giving a fresh cause of action for the petitioners to claim lapsing under the said Act of 2013; in other words, in the peculiar / special facts and circumstances of the instant case, in the absence of any finding in the earlier round of proceedings with regard to the respondents having taken possession of the schedule property from the petitioners and / or their tenant/lessee, the present claim of the petitioners by taking 23 recourse to Section 24(2) of the said Act of 2013 cannot be construed or treated as a time barred or stale claim in relation to concluded proceedings so as to come in the way of the petitioners relying upon Section 24(2) of the said Act of 2013 in the present petition and consequently, the said contention cannot be accepted.
17. In the result, I pass the following:-
ORDER
(i) Petition is hereby allowed;
(ii) The impugned preliminary notification, final notification and award and all acquisition proceedings pursuant thereto, insofar as they relate to the petition schedule property bearing Sy.No.23/4 measuring 23 guntas situated at Nayandanahalli, Kengeri Hobli, Bangalore South taluk, Bangalore district bearing V.P.Khata No. 1148/2013 and 1148/13/1 and presently bearing BBMP Municipal No.23/4/1148/13 in ward No.131 of BBMP are hereby quashed.24
In view of disposal of the writ petition, all pending interlocutory applications, if any, do not survive for consideration and the same are disposed of.
SD/-
JUDGE Srl.