Karnataka High Court
Smt Rathnamma vs The State Of Karnataka on 24 February, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 24TH DAY OF FEBRUARY 2014
BEFORE
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.21202-21205 OF 2011 (LA-KIADB)
BETWEEN:
1. Smt. Rathnamma,
Wife of Late K. Vasudeva Rao,
Aged about 83 years,
Residing at No.24,
"Umasutha" Nilaya,
Vidyanagar, T. Dasarahalli,
Bangalore - 560 057.
2. Sri. K.V. Srinath,
Son of Late K. Vasudeva Rao,
Aged about 56 years,
Residing at No.31, III Cross,
Vidyanagar,
T. Dasarahalli,
Bangalore - 560057.
3. Sri. K.V. Venkatagiri,
Son of Late K. Vasudeva Rao,
Aged about 60 years,
Residing at II Cross,
III Floor, Sri. Venkateshwara Apartments,
Vidyanagar, T. Dasarahalli,
2
Bangalore - 560 057.
4. Sri. U.S.Kukkilaya,
Son of U. Venkata Kukkilaya,
Aged about 75 years,
Residing at No.85,
"Girija Nilaya",
Vidyanagar,
T. Dasarahalli,
Bangalore - 560 057.
...PETITIONERS
(By Shri. T. Seshagiri Rao, Advocate)
AND:
1. The State of Karnataka,
Represented by its
Chief Secretary,
Vidhana Soudha,
Bangalore - 560 001.
2. The Project Director,
National Highways Authority,
K.R.Circle,
Bangalore - 560 001.
3. The Special Land Acqusition Officer,
National Highways Division,
K.R.Circle,
Bangalore - 560 001.
4. The Executive Officer,
Karnataka Industrial Areas
Development Board,
3
Nrupathunga Road,
Bangalore - 560 001.
5. The Land Acquisition Officer,
Karnataka Industrial Areas Development
Board, 3/2, Thimmaiah Complex,
3rd Floor, 3rd Cross,
Gandhinagar,
Bangalore - 560 009.
6. The Bangalore Metro Rail
Corporation Limited,
Having its office at:
BMTC Complex,
3rd Floor, K.H.Road,
Shanthi Nagar,
Bangalore - 560 027,
Represented by its
Executive Director.
... RESPONDENTS.
(By Shri. D. Nagaraj, Additional Government Advocate for
Respondent Nos. 1 to 3
Shri. P.V. Chandrashekar, Advocate for Respondent Nos. 4 and
5
Shri. M.N. Harish, Advocate for Respondent No.6)
*****
These Writ Petitions filed under Articles 226 and 227 of
the Constitution of India praying to hold and declare that the
acquisition proceedings initiated by second respondent and
third respondent vide preliminary notification under Section
4(1) of L.A.Act, dated 7.1.1987 found at Annexure-E in case
No.LOA2SR10/87-88 and the final declaration under Section 6
of the LA Act dated 29.9.1988 found at Annexure-F, relating to
4
the land bearing Sy.No.13/3A2, situated at T. Dasarahalli,
Yeshwanthapura Hobli, Bangalore North Taluk, Bangalore, has
lapsed and etc;
These Writ Petitions coming on for Hearing this day, the
court made the following:
ORDER
Heard the learned counsel for the petitioners and the respondents.
2. The petitioners claim that one K. Vasudeva Rao is said to have died on 12.06.2007, leaving behind the petitioners who are his widow and children. During his lifetime, K. Vasudeva Rao is said to have purchased a house property at T. Dasarahalli, Yeshwanthapura Hobli, Bangalore North Taluk, Bangalore, under two different registered sale deeds dated 9.3.1953 and 30.11.1953 from one Muniswamappa, S/o. Bajjappa. The properties were contiguous to each other forming part of land bearing Sy.No.13/3 situated at T. Dasarahalli, Yeshwanthapura Hobli, Bangalore North Taluk. 5 The sale deed dated 9.3.1953 was found to contain a mistake. In that, the property number was not precisely mentioned and it was indicated by a Khaneshumari number and therefore, there was a Rectification Deed executed dated 2.7.1956 to indicate the property number as well. It is stated that in the property purchased under the sale deed dated 9.3.1953, a portion of the property bearing Sy.No.13/3 measured East to West 36' and North to South 21', whereas, under the sale deed dated 30.11.1953, there were two portions of land bearing Sy.No.13/3 measuring East to West 36 ft. and North to South 12 ½ ft., and another bit measuring East to West 33 ft. and North to South 112 ft. The entire extent of land described is delineated in a rough sketch produced along with the petition.
It is claimed that the properties purchased by Vasudeva Rao had a road width of 69 ft on the Southern side of the property, which is the present National Highway, and an area measuring East to West 6 ft. and North to South 33½ ft., had been voluntarily given up for the formation of a cross road, 6 which is also indicated in the sketch by letters 'NKLM' and therefore, the property held by Vasudeva Rao stood reduced to 63 ft from 69 ft. East to West on the Southern side. Subsequent to the purchase, there was a survey settlement and the properties were assigned new survey number as Sy.No.13/3A2. A copy of the Hissa Survey Tippani is produced as Annexure-"C" to the petition. It is further stated that Vasudeva Rao, during his lifetime, has executed three Gift Deeds in favour of Petitioner Nos.2, 3 and 4 respectively, conveying different portions of the property held by him. The portion which was gifted in favour of Petitioner No.2 is shown as Item No.II and marked by the letters 'QHIP' in the sketch annexed to the petition and the portion which is gifted in favour of Petitioner No.3 is shown as Item Nos.III and IV, marked by letters 'PIJO' and 'UJKS'. The portion which was gifted in favour of Petitioner No.4 is shown as Item No.V, which is marked by the letters 'OUSN' in the sketch.
7
After executing these Gift Deeds, he still retained a portion of the property in Sy.No.13/3A2, which is marked by the letters 'AEFQ' in the sketch. After the death of Vasudeva Rao, Petitioner No.1, his widow, was managing the family affairs. It is claimed that National Highway No.4 is on the Southern side of the property. In the year 1987, the National Highways Authority, in order to widen the Highway, had notified 1 gunta of land bearing Sy.No.13/3A2 for acquisition. The notification dated 7.11.1987 is annexed. The land bearing Sy.No.13/3A2 was the property of Vasudeva Rao, as he had purchased the same under sale deeds, aforesaid. However, in the notification issued by Respondents 2 and 3, the name of one Byrappa was shown as the kathedar and anubavdar and a final notification was issued on 29.09.1988 in respect of the said 1 gunta of land, where again, the name of Vasudeva Rao was not reflected.
The third respondent is said to have passed an award on 26.04.1990 and had fixed the compensation at Rs.234/- in 8 respect of the 1 gunta of land. It was shown that Byrappa was entitled to the same. It is further stated that Vasudeva Rao, during his lifetime, had got converted an extent of 5 guntas of land out of the property held by him from agricultural to non- agricultural purposes, as per the order of the competent authority dated 26.11.1960, a copy of the conversion order is annexed to the petition and therefore, it ceased to be an agricultural land from the year 1960 and it is for that reason that the name of Vasudeva Rao is not shown in the revenue records from that point onwards.
It is hence the case of the petitioners that the third respondent had misled itself in issuing the preliminary notification and the final notification in the name of the wrong person and even though the same was notified and an award having been passed, the possession of the property had remained with the petitioners even as on the date of the petition. It is therefore claimed that the acquisition proceedings had no effect on the said extent of land, as the petitioners continued to 9 remain in possession and the petitioners have claimed in the writ petition that the factum of the petitioners continuing in possession of the said extent of land measuring 63 ft East to West and 17.30 ft North to South shown by the letters 'ABRNA' in the sketch annexed to the petition, continues to be in their possession and that they are also willing to have the same inspected by any Agency.
While matters stood thus, it is the case of the petitioners that the fourth respondent on behalf of the Karnataka Industrial Areas Development Board, had issued a notification under the provisions of the Karnataka Industrial Areas Development Act, 1966 proposing to acquire an area of 178.05 sq.mts. of land held and possessed by the petitioners, for the benefit of the sixth respondent for the purpose of the BMRCL Project dated 31.01.2009 and thereafter a final notification was issued dated 23.02.2010. The petitioners were served with a notice under Section 28(6) of the KIAD Act of their intention to take over the land measuring 178.05 sq.mts. The BMRCL authorities had 10 consequently entered upon the property and had marked an area measuring 254.41 sq.mts. earmarking the same for being taken over. It is the case of the petitioners therefore, that the said extent would not be taken possession of, as there was no notification issued to acquire the said extent of land. In that, it is the case of the petitioners that 1 gunta of land having been acquired by the National Highways Authority, the remaining extent would alone be taken over by the BMRCL authorities and hence, the claim of BMRCL authority to take over a total extent of 254.41 sq.mts., was not justified. In that, it is further stated that the National Highways Authority had never taken possession of 1 gunta of land bearing Sy.No.13/3A2 from the petitioners, under the earlier acquisition proceedings, as there was no earlier notification issued in the name of Vasudeva Rao under whom the petitioners claim and no compensation being paid in respect of the same, it is not for the BMRCL to lay claim to the said extent of 1 gunta of land which is already an alleged subject matter of acquisition proceedings. 11
Insofar as the notification issued under the KIAD Act and the acquisition of land to the extent of 178.05 sq.mts. is concerned, the petitioners have no grievance. In that, they have been paid compensation through the medium of the KIADB in respect of the said acquisition. However, on the say of the BMRCL that the National Highways Authority having acquired 1 gunta of land as already stated earlier, which was the subject matter of acquisition proceedings initiated in the year 1988 while in the contrary, the petitioners claim, always remained in their possession and it is that extent which according to the BMRCL, the National Highways Authority has permitted them to utilize the same and it is on that basis that the BMRCL had sought to lay claim over the said extent of land, apart from 178.05 sq.mts. which was duly acquired under the KIAD Act. It is in this background that the present petition is filed negating the claim of the BMRCL in respect of 1 gunta of land which is claimed to be the subject matter of acquisition proceedings as already stated, which the petitioners would stoutly deny and 12 claim that they have been in continuous possession of the same and the acquisition proceedings are invalid.
3. The respondents having entered appearance in this petition, pleadings have been completed. In the course of the proceedings, an application in I.A.1/2012 dated 7.6.2012 was filed by the petitioners questioning the claim of BMRCL that the petitioners were not the owners of the entire extent of 178.05 sq.mts. which was the subject matter of acquisition, as there was a road existing in respect of which the compensation could not be paid to the petitioners. If that is excluded, compensation could be paid only in respect of 166.67 sq.mts. It is that controversy on the basis of which the petitioners had sought a direction to pay the compensation in respect of the entire extent of 178.05 sq.mts., on the petitioners handing over the possession of the same to BMRCL. Incidentally, it was also highlighted that the 1 gunta of land which was the subject matter of acquisition proceedings under the National Highways Authority Act, was also in the possession of the petitioners and 13 that unless the possession of the same was given up, the project would come to a halt and hence, during the course of the hearing on I.A.1/2012, it was felt that as the matter would have to be adjudicated and having regard to the urgency pleaded, the following order was passed, dated 10.09.2012:
"The application I.A.I/2012 for direction dated 7.6.2012 coming on for orders, the same is vehemently opposed on behalf of the State Government on the ground that the very entitlement of the petitioners claiming the land in question which is the subject matter of the main petition, is under serious dispute and the question of granting any direction as prayed for in the present application, does not arise.
The learned counsel appearing for the sixth respondent - The Bangalore Metro Rail Corporation Limited, however would submit that by virtue of the interim order granted by this Court whereby the respondent is restrained from interfering with the subject matter of the writ petitions as well as the limited extent of land which is the subject matter of the present application, has resulted in the ongoing metro rail work having come to a standstill. Notwithstanding 14 the dispute as between the petitioners and the State insofar as the claim over the land and the entitlement of the petitioners to claim compensation in respect of the same, the learned counsel for Respondent No.6 would submit that the compensation amount which would be payable in respect of disputed areas include not only the land covered under the main petition but the portion of land which is the subject matter of the present I.A.1/2012, though the second part of the claim being disputed by the Metro Rail Corporation namely the portion of land which is the subject matter of I.A.I/2012, the counsel would submit that in order to ensure that the Metro Rail Project is not delayed, the sixth respondent would make a deposit of the entire amount of compensation before this Court, subject to the result of these writ petitions and therefore, seeks vacating the order of stay.
The learned counsel for the petitioners would submit that if the matter has to be heard at length with reference to the material on record as well as the objections raised by the State, he would have no objection if the amount of compensation being kept in deposit before this Court subject to the result of the writ petitions and the learned Government Pleader also would not be averse to the said procedure being 15 adopted, if the petition is heard on merits in due course.
Accordingly, without entering upon the controversy or expressing any opinion about the claim of the petitioners or the objection by the State as regards the subject matter of the main petition as well as the limited extent of land that is the subject matter of I.A.I/2012, the Respondent No.6 is granted two weeks' time to deposit the entire amount of compensation payable, not only in respect of the land which is the subject matter of the main petitions, but also the portion of land which is under dispute and which is the subject matter of I.A.I/2012, before this Court. On such deposit, the said amount shall be deposited in a Nationalised Bank by the Registry of this Court for a period of one year, renewable subject to further orders of this Court and subject to the result of these petitions. Accordingly, the interim order granted earlier stands vacated with liberty to the sixth respondent to proceed with its ongoing project over the subject lands in question, subject to the deposit of the amount as directed hereinabove. I.A.1 stands disposed of accordingly. However, it is clarified that the dispute as regards the claim of the petitioners in respect of 11.38 square metres, is not resolved by this order and shall remain open for adjudication at the time of final 16 hearing. The learned counsel for the petitioners would submit that the petitioners still continue to be in possession and require reasonable time to remove their movables and make the same available to Respondent No.6. Accordingly, two weeks' time is granted to hand over vacant possession of the property in question to Respondent No.6.
Issue rule. Post for hearing in the usual course."
It is pursuant to this order that the petitioners who were admittedly in possession of the 1 gunta of land which was the subject matter of earlier proceedings as well as the area measuring 178.05 sq.mts., which was the subject matter of the acquisition proceedings under the KIAD Act, which was handed over to the respondents, the buildings and other structures standing thereon were demolished and the BMRCL was enabled to proceed with its project. Reciprocally, the compensation amount in respect of the entire extent of land, namely 1 gunta of land which was the subject matter of the earlier proceedings as well as the area of 11.38 sq.mts. which 17 was sought to be denied out of 178.05 sq.mts. which was the subject matter of acquisition, was deposited before this Court and subject to the result of the writ petition, the petitioners gave up possession of the said extents of lands. It is thereafter that the petition has now come up for hearing.
4. The respective pleadings of the respondents are thus:
In the Statement of objections filed on behalf of the State Government dated 9.1.2012, it is claimed that the land in Sy.No.13/3A2 to an extent of 1 gunta of T. Dasarahalli, was acquired for the National Highways and the land was taken possession of in terms of Section 16(2) of the LA Act, in the year 1987-88. A copy of the notification is sought to be produced as Annexure-"R1". It is claimed that compensation in a sum of Rs.234/- was awarded for the said land and it was deposited in the name of the Tahsildar, as the land in question was a kharab land and vested with the Government. That as per the RTC extract for the year 1986-87, the name of one Byrappa is shown in Column No.9 and also in the name of National 18 Highways. Copies of the notification issued under Section 16(2) of the Land Acquisition Act and a copy of the award dated 6.4.1990 are sought to be produced. It is further stated that the revenue records for the years 1986-87 were considered for the purpose of issuing notifications under Sections 4(1) and 6(1) of the Land Acquisition Act and the name of the kathedar is shown as Byrappa, though it was later classified as kharab and therefore treated as Government land.
The claim of the petitioners having retained possession is denied, while generally negating the claim of the petitioners that possession was not taken and that proceedings had lapsed, by a further additional statement of objections, affidavit dated 14.08.2012 of the Special Land Acquisition Officer, National Highway Division. It is stated that insofar as the lands in Sy.No.13/3A2 measuring 1 gunta is concerned, this was notified along with other lands totally measuring 11 ½ guntas under Section 4(1) for the purposes of formation of parallel service road to the State Highway No.4 from KM.10 to KM.30 19 and final notification dated 3.9.1998 was issued for the said 11 ½ guntas and the revenue records indicated the kathedar as one Byrappa for the year 1986-87. Since Byrappa was not residing in the village, proceedings had been notified on the land in question. The mahazar was drawn up as regards taking of possession and published in the village chavdi and it is also stated that an award was drawn up and approved and it was duly gazetted and the award amount was deposited with the Tahsildar, as the land was treated as a kharab land. Insofar as the claim of the petitioners that the said land was converted land, it is clarified that there are no records available pertaining to the conversion in the office.
By a further additional Statement of objections dated 4.9.2012, the State has further claimed that apart from Byrappa's name in the revenue records, there are no other entries. This has been clarified by the Tahsildar, that right from the year 1976-77 to 1999-2000, there are no other entries in the revenue records and in respect of the acquisition of land for the 20 National Highway is concerned, the Revenue records stand mutated. It is also reiterated that as per the report of the Tahsildar and the revenue records, there are no documents or entries found for alienation or conversion, except the entry of the year 1963, which reflects the name of Byrappa.
It is further pointed out that the petitioners have not produced any documents to show how the vendors of the petitioners got the land in question from Byrappa, if at all and there is no document to establish title of the vendor of the petitioners, or their predecessor in title and hence, it cannot be said that the petitioners have approved title to the property.
Insofar as Respondents 4 and 5 - respondents representing the KIADB is concerned, it is contended that the challenge to the acquisition proceedings both under the Land Acquisition Act and the KIAD Act are hit by delay and laches. Insofar as the proceedings under the KIAD Act are concerned, the same is for a public purpose, namely for the benefit of the Bangalore Metro Rail and hence, there is no infirmity or 21 illegality in the proceedings. It is not the case of the petitioners that their names are not reflected in the notification or in the award. However, the award passed by the third respondent at Annexure-"G" indicates that the portion of the land acquired for the National Highways, is a kharab land. As such, the amount of compensation has been deposited with the Tahsildar and the petitioners have not questioned the same.
There is no material placed before the Court of the petitioners having sought to recover the compensation from the third respondent, while it was always open for them to approach the third respondent for release of compensation by establishing their title to the property and hence, it is not open for them to claim that they have not received any compensation from the National Highways Authority or the Special Land Acquisition Officer for National Highways. It is too late for the petitioners to agitate that the acquisition under the Land Acquisition Act was in the name of the wrong persons and the proceedings having become invalid on account of the same. It is however 22 not denied that the acquisition under the KIAD Act was in respect of an extent of 178.05 sq.mts. Insofar as Respondent No.6 is concerned, again it is contended that the challenge if any, under the second acquisition proceedings, it is only at the time that the respondents sought to take possession under the KIAD Act that the petitioners have chosen to challenge the acquisition under the Land Acquisition Act for the National Highways, and the same is barred by delay of over 23 years, and insofar the challenge to the acquisition under the KIAD Act by one year and four months, and hence, the petition is liable to be dismissed on the ground of delay and laches alone.
Without prejudice to the same, it is contended that the property in question falls in road 3B of the project and was being acquired for the construction of a viaduct which would host the Metro Rail tracks. It is claimed that the respondent is not aware whether the petitioners have derived title to the property in question in the manner described in the petition. It is however claimed that the acquisition proceedings taken up 23 for the National Highway, is believed to be without infirmity. In the absence of the petitioners having produced any material to show that they could lay claim to the lands by virtue of any title in their behalf, it was denied that the petitioners were in possession of the property. It is claimed that the possession was taken under the KIAD Act and handed over to the sixth respondent on 15.04.2010 and that the proceedings are valid and in accordance with law and hence, the question of quashing the notifications, would not arise.
5. Insofar as the extent of land acquired under the Land Acquisition Act and which has been permitted to be taken over by the sixth respondent by the National Highways Authority of India, cannot be questioned in the present proceedings, in the absence of any challenge to those acquisition proceedings over the years.
The exchange of correspondence between the BMRCL and the National Highways Authority of India is sought to be produced, to establish its stake over the said land in question 24 and it is contended that neither was the petitioner entitled to question the acquisition proceedings under the Land Acquisition Act or under the KIAD Act.
The petitioner in turn, has filed a rejoinder to contend that the notification issued by the State Government under the provisions of the Land Acquisition Act insofar as 1 gunta of land in the year 1987, was not issued in the name of the petitioners or their predecessor in title. It is evident that as on the date of the notification, the land in question was no longer agricultural land and it had been converted for non-agricultural purposes and therefore, the question of revenue entries being in the name of Vasudeva Rao or the petitioners, would not arise.
The land having been treated as non-agricultural land and the petitioners claiming through Vasudeva Rao having paid property taxes in respect of the land and the Katha Certificate issued are sought to be produced along with a rejoinder and therefore, when the notification was issued in the year 1987, the State having proceeded on the basis of revenue entries which 25 were redundant and which were in respect of non-existent persons even according to the pleadings of the State, would certainly render those proceedings invalid. It is on record that the land in question having been converted for non-agricultural purposes, Vasudeva Rao had constructed five shops facing the National Highway and it is that portion of the land which was notified by the State for the benefit of the National Highways Authority for widening of the highway and it could not therefore be construed as kharab land and the notifications having proceeded on that basis, was clearly irregular. Therefore, the petitioners have yet again thrown a challenge that the same be subjected to inspection, in order to establish their contentions.
6. In the above facts and circumstances, notwithstanding that the petitioners had failed to question the acquisition proceedings initiated in the year 1987, there is material on record to indicate that the land as notified in the first instance for the benefit of the National Highways Authority in the year 26 1987 has proceeded on the basis that it was agricultural land and that the kathedar was one Byrappa, when in fact as on the date of the notification, the land was converted and may not have been reflected in the revenue records. Even assuming that further proceedings had been taken, the factum of possession having been taken, is only sought to be asserted by reference to the notification under Section 16(2) of the LA Act. The petitioners and before them, Vasudeva Rao having continued in possession of the land, is established by reference to other documents such as tax paid receipts and katha certificates issued by the Local Authority over the years. Therefore, if possession was never taken under the earlier proceedings, it cannot be said that the land in question had vested in the State. Though the delay and laches in the petitioner seeking to question the said acquisition proceedings on those grounds would again loom large, the situation as on the date of the petition is also to be kept in view. In that, it is only when the sixth respondent namely the Metro Rail Corporation which 27 sought to take possession of the land on an ostensible permission granted by the National Highways Authority in utilizing the land that had purportedly been acquired for its benefit under the 1987 notification and pursuant to the subsequent acquisition proceedings under the Karnataka Industrial Area Development Act for the benefit of the sixth respondent, that the sixth respondent was faced with resistance from the petitioners who were apparently well entrenched in the property and as already stated, by having constructed the shops therein, which is a fact not denied by the sixth respondent.
Incidentally, there is no dispute as regards the ownership and possession of the land by the KIADB insofar as the notification under the KIAD Act is concerned, except that the KIADB in its statement of objections has taken note of the denial of the title of the petitioners by the State Government insofar as the extent of 1 gunta of land which was the subject matter of the 1987 notification under the Land Acquisition Act. In any event, the sixth respondent which was seeking to take 28 possession not only of the 178.05 sq.mts. of land which was the subject matter of the notifications under the KIAD Act, but also the 1 gunta of land in respect of which it had obtained permission from the National Highways Authority to utilize for its project, which was also a public purpose. It is in that background that I.A.1/2012 was filed before this Court and the controversy as to the entire project of the sixth respondent being stalled on account of the stiff resistance by the petitioners to give up possession of the lands, unless the controversy as regards the shortfall of the land actually acquired, in that the BMRCL sought to question the entitlement of compensation to the extent of 178.05 sq.mts., whereas there was a road in existence in respect of which compensation was not due to the petitioners and that the actual land being acquired was only 166.67 sq.mts. However, when it was pointed out that not only was the Respondent No.6 being denied possession of the extent which was the subject matter of notification under the KIAD Act, but the 1 gunta of land which was purportedly acquired 29 and taken possession of by the State Government under the 1987 notification as well, that as a measure to enable the sixth respondent to proceed with its project which was bound to be delayed on account of the controversy raised by the petitioners that as an adhoc measure, it was directed that the sixth respondent deposit the entire amount of compensation in relation to the disputed area of 11.38 sq.mts., as well as 1 gunta of land which was being taken over by the sixth respondent and pursuant thereto, the petitioners are said to have given up their possession to the property and it is thereafter that the sixth respondent has demolished the structures thereof and has proceeded with its project. It is now that the matter has come up for final hearing.
7. Given the pleadings of the State Government in seeking to justify the acquisition and its claim that it has taken possession, it is to be noticed that the State Government bluntly disputes the existence of any Title Deeds in favour of the petitioners or thier vendors and also denies any conversion of 30 land in favour of the petitioners or for the nebulous claims that the RTC extracts in respect of the land pertaining to a particular year, stood in the name of one Byrappa who, even according to the State, was not residing in the village and also nebulously claims that the land is classified as 'B' Kharab and therefore, the compensation amount of Rs.234/- has been deposited with the Tahsildar. The pleadings are confusing and not clear. The fact that the State Government negates the Title Deeds, namely the Sale Deeds in favour of the petitioners, the tax-paid receipts, the katha certificate issued by the Local Authorities and the physical existence of shops which were there in the property, which the petitioner had to give up by virtue of the orders of this Court, are not taken into account.
8. Given the above circumstances, as the petitioners have divested themselves of the possession of the property at the instance of this court and not only in respect of 11.38 sq.mts. which was the area in dispute, but also 1 gunta of land which was the subject matter of the earlier acquisition proceedings, it 31 cannot be said that the petitioners can be denied of the benefit which would have accrued to them in the event of the petitioners having been recognized as the true owners of the land which is acquired, albeit for a public purpose. In that view of the matter, when there is no dispute that physical possession had been retained by the petitioners throughout and had been recognized by the local authorities and in the face of the State Government having ignored the fact that the land was converted land and that the revenue records would not have reflected the name of the kathedar if the land had been converted in the revenue records, the discrepancies are explained. Therefore, in the light of the above facts and peculiar circumstances, the petition is allowed.
9. It is necessary therefore for the said extent of land which was already been utilized by the BMRCL for the Metro Rail Project, again by virtue of the interim order of this Court that there be fresh proceedings, post-facto, in order to regularise 32 the taking over of the land and for purposes of payment of compensation to the petitioners.
Insofar as Annexures "J" and "K" are concerned, the matter stands resolved. In that, the notifications having been in respect of an extent of 178.05 sq.mts., it was not open for the BMRCL to have questioned the extent of land, much after the final notification and therefore, the question of quashing Annexures J and K would not arise.
The petitioners are entitled to the benefit of compensation in respect of the extent of 178.05 sq.mts.
The petition insofar as Annexures "J" and "K" is concerned. In the fact of the circumstance that there was a corrigendum to the notifications Annexures "J" and "K", as per Annexure -R-16 produced by Respondent No.6 to indicate that it was at the instance of the petitioners that a survey was conducted of the land in question and it was found that the petitioners were in possession only to an extent of 166.67 33 sq.mts. Therefore, the petition insofar the challenge to Annexures "J" and "K", fails and the petition is allowed in part in terms as above.
Sd/-
JUDGE KS