Karnataka High Court
Sri. C. Arogyaswamy vs State Of Karnataka on 23 January, 2017
Author: B.S.Patil
Bench: B.S.Patil
WP 13592-595/2016
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.Nos.13592-595/2016 *(LA-BDA)
BETWEEN
1. SRI C.AROGYASWAMY
S/O. LATE CHOWRAPPA,
AGED ABOUT 72 YEARS,
R/O. ERANNANAPALYA,
NAGAWARA DHAKALE,
KASABA HOBLI,
BANGALORE NORTH TALUK-10,
BANGALORE.
2. C.ARALAPPA,
S/O. LATE CHOWRAPPA,
AGED ABOUT 68 YEARS,
R/O. ERANNANAPALYA,
NAGAWARA DHAKALE,
KASABA HOBLI,
BANGALORE NORTH TALUK-10,
BANGALORE.
3. ZAKEERA LIAQUATH ALI,
W/O. MR. ASKIRI LIAQUATH ALI,
AGED ABOUT 53 YEARS,
R/AT DARUAL ASKAR,
N.H. CROSS,
KARAGADDY, SHIFA COLONY,
BHATKAL-581 320.
REP.BY HER GPA HOLDER,
MR. MOHAMMED ROUF SHARIFF,
S/O. MR. ABDUL SUBHAN,
AGED ABOUT 49 YEARS,
NO.5/5, BENSON CROSS ROAD,
BENSON TOWN,
BANGALORE-560 046,
PRESENTLY RESIDING AT NO.28,
*Corrected vide Chamber Order Dt: 29.06.2017
WP 13592-595/2016
2
BENSON ROAD, BENSON TOWN,
BANGALORE-560 046.
4. DR.GOPINATH R.
S/O. SRI. RAMAIAH,
AGED ABOUT 49 YEARS,
R/AT NO.34, 3RD CROSS,
MARAPPA GARDEN,
BENSON TOWN POST,
BANGALORE-46. ... PETITIONERS
(By Sri JAYAKUMAR S.PATIL, SR.COUNSEL FOR
Sri PRUTHVI WODEYAR, ADV.)
AND
1. STATE OF KARNATAKA,
DEPT. OF URBAN DEVELOPMENT AUTHORITY,
M.S. BUILDING,
BANGALORE-560 001,
BY ITS SECRETARY.
2. BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
KUMARA KRUPA WEST,
BANGALORE-560 020,
REPTD. BY ITS COMMISSIONER.
3. THE SPECIAL LAND ACQUISITION OFFICER,
BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
KUMARA KRUPA WEST,
BANGALORE-560 020. ... RESPONDENTS
(By Sri B.S.SACHIN, ADV.FOR R2 & R3;
Sri VENKATESH DODDERI, AGA FOR R1)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
PRELIMINARY NOTIFICATION DT:2.6.1978 VIDE ANNEXURE-B
ISSUED BY R-2 AND TO QUASH THE FINAL NOTIFICATION
DT:24.11.1984 VIDE ANENXURE-C ISSUED BY R-2 AND ETC.
WP 13592-595/2016
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THESE PETITIONS COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Petitioners have approached this Court aggrieved by the acquisition of their land for the benefit of the Bengaluru Development Authority (for short, 'BDA') and are seeking a direction that the acquisition proceedings initiated have lapsed/ abandoned in view of the long and inordinate delay in completing the acquisition proceedings in respect of Sy. No.54/2A4 measuring 14 guntas situated at Nagawara village, Kasaba Hobli, Bengaluru North Taluk.
2. Facts, briefly stated are that petitioners claim to be the absolute owners of 14 guntas of land comprised in Sy. No.54/2A4. Petitioners 1 & 2 along with their brothers were the original owners of the property. They claim to have formed sites in the property in question and sold some of the sites to different persons. Petitioner No.3 has purchased Site No.1, Assessment No.54/2 and 54/2A-4, Khatha No.711/1 measuring 60' x 112' 6" as per sale deed dated 13.06.1997. Petitioner No.4 has purchased Site No.2, Assessment No.54/2 WP 13592-595/2016 4 and 54/2A-4 measuring 60' x 30' under sale deed dated 25.11.2004.
3. Land bearing Sy. No.54/2A4 measuring 14 guntas was notified for acquisition as per Preliminary Notification dated 02.06.1978 issued under Section 17(1) & (3) of the Bengaluru Development Authority Act, for formation of a layout called "Hennur Road and Bangalore Bellary Road III Stage".
4. It is urged by the petitioners that several lands situated in different villagers were notified for acquisition including those situated at Nagawara village. Totally 982 acres of land was notified. Out of which, in Nagawara village 110 acres 35 guntas was notified. However, while issuing final notification, only 433 acres 32 guntas was notified for acquisition and as regards the land situated in Nagawara village only 22 acres 26 guntas was notified and all other lands were excluded from the purview of the notification.
5. Contention urged by the petitioners is that though final notification was issued on 24.11.1984 preceded by the preliminary notification of the year 1978, respondent No.2 - BDA did not pass any award as required under Section 11 of WP 13592-595/2016 5 the Land Acquisition Act; respondent No.2 passed an award only on 27.07.1989 after a lapse of five years from the date of issuance of final declaration. It is further contended that though award was passed on 27.07.1989, no amount was paid to the petitioners and a sum of Rs.49,817/- was deposited before the Civil Court on 28.06.1990 after a lapse of more than six years from the date of issuance of the final notification. The main contention urged by the petitioners is, that physical possession of the property has not been taken so far.
6. Learned Senior Counsel appearing for the petitioners contend that though the notification under Section 16(2) has been issued and a mahazar has been drawn, mere fact of issuance of notification and drawing up of mahazar would not be sufficient to establish that possession had been delivered, in as much as, it had to be established that physical possession of the land has been taken in accordance with law. Reliance is placed by the petitioners on the judgment of this Court in the case of H.ERAIAH & ANOTHER VS STATE OF KARNATAKA & OTHERS - 2014(5) KCCR 334, to contend that where the names and address of the witnesses who had allegedly signed the mahazar was not forthcoming, such mahazar could not form WP 13592-595/2016 6 the basis to hold that possession had been taken over. It is further contended by the Counsel for the petitioners that entire lands in and around the acquired area have been fully developed except the small piece of land measuring 14 guntas belonging to the petitioners, and therefore, it was totally incapable of being developed into any layout of sites, particularly when the petitioners have already put up construction over the land. In this regard, reliance is placed on the photographs at Annexures-G, G1, G2 & G3.
7. Inviting the attention of the Court to Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, 'New Act'), it is urged by the Counsel for the petitioners that unless physical possession of the land has been taken, the proceedings shall be deemed to have lapsed in case where the proceedings had been initiated under the provisions of the Old Act and award under Section 11 had been made five years or more prior to the commencement of the New Act. Learned Counsel for the petitioners has placed reliance on the judgment rendered by this Court in this connection in the case of WP 13592-595/2016 7 CHIKKATHAYAMMA & OTHERS VS STATE OF KARNATAKA & OTHERS - 2016(2) AKR 737.
8. Per contra, learned Counsel appearing for the BDA taking me through the statement of objections filed, supports the acquisition proceedings urging that petitioners had earlier approached this Court challenging the very same notification and the writ petitions filed by some of the petitioners came to be dismissed holding that the scheme had been already implemented by forming layout, and therefore, once it was established that the scheme had been substantially implemented, Section 27 of the BDA Act would not get attracted. He also points out that Section 24(2) of the New Act is not applicable to the facts of the present case and that the decision rendered by the Single Judge of this Court has been the subject matter of challenge before the Division Bench in Writ Appeal, where interim order has been granted.
9. Upon hearing the learned Counsel for both parties, the only point that requires to be considered is, "whether the acquisition proceedings in the instant case have stood lapsed on account WP 13592-595/2016 8 of the application of the provisions contained under Section 24(2) of the New Act?"
10. The mahazar drawn by the authorities at the time of alleged taking over possession is produced at Annexure-E1. As can be seen from the said mahazar, none of the names of the witnesses who have signed the mahazar are forthcoming, let alone their address and other details. The signature of the petitioners who are the notified khathedars of the land in question is also not forthcoming in the said mahazar. The mahazar has been allegedly drawn on 16.08.1989. As held by this Court in Eraiah's case referred to supra, in such circumstances, the mahazar so drawn could not be taken as a material to establish taking over possession, and therefore, any notification issued based on the said mahazar under Section 16(2) of the Land Acquisition Act would not be accepted as a factor to conclusively show that physical possession of the land had been taken. Paragraph 6 of said decision referred to supra can be usefully extracted as under:
"6. In the light of the above contentions, it is seen from the record that the respondents claim that the layout in question has been formed and the Scheme is substantially implemented. It is not however, claimed by the respondents that the land of the petitioners, in question, has been utilized in the formation of the WP 13592-595/2016 9 layout. Therefore, it would be necessary to examine whether from the material on record, it could be said that the respondents have indeed taken possession of the land in question.
On a plain examination of the Mahazar, under which the respondents claim to have taken possession of the lands, it is seen that as pointed out by the learned counsel for the petitioner, on the face of it, the same cannot be acted upon, because it is in a printed form and does not record whether the owner was present or not and is drawn mechanically. The four witnesses alleged to have signed cannot be identified, as no details are forthcoming. The names are simply scribbled and appeared to be in the handwriting of one person. Therefore, such a mahazar cannot be taken as a fact of taking possession and the subsequent notification based on such a mahazar dated 8.5.2003 under Section 16(2) of the LA Act cannot also be accepted.
The documents now sought to be produced cannot be taken note of as the respondent, in its Statement of Objections, asserts to have taken possession of Survey Nos.2/1 and 6/2 together on the same day and the notification under Section 16(2) also is factually incorrect because admittedly, in respect of Survey No.2/1, neither an award is passed nor is possession taken.
It is further evident that since the respondents did not actually take physical possession of the lands in question, they were not able to implement the Scheme even to this day. Though the respondents claim that 8 guntas of land was required for formation of the road, no road as on today is formed, which is evident from the latest photographs produced by the petitioners.
Coupled with this, it was reported more than once by the respondent's personnel themselves that the lands were not included in the layout plan. Therefore, if it can be said that the factum of taking of possession is in conformity with the established conditions that require to be met, which are succinctly set out by the apex court in WP 13592-595/2016 10 the case of Banda Development Authority vs Moti Lal Agarwal & Others, (2011)5 SCC 394, as under :
"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 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.
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(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public WP 13592-595/2016 11 purpose, then the Court may reasonably presume that possession of the acquired land has been taken."
11. Indeed, as could be seen from the observations made herein above in paragraph 6 of Eraiah's case, this Court has considered the effect of the judgment of the Apex Court while holding that presence of independent witnesses and requirement to get their signatures on such document has to be emphasized.
12. In addition, what is most important in this case is, that the BDA has not utilized the land measuring 14 guntas for the purpose it was notified and acquired. Indeed, the surrounding lands have been fully developed. The photographs relied upon by the petitioner disclose that a huge apartment has come up on one side of the land and in the land in question, petitioner has put up construction. Therefore, it is amply clear that petitioners continue to be in possession of the property occupying the constructed portion thereunder. If that is so, it is apparent that the BDA has not taken over possession and has not used the same for the purpose of formation of layout.
WP 13592-595/2016 12
13. Even though other acquired lands have been utilized for formation of layout, the fact remains that as this land has not been utilized and the petitioners have put up construction therein and the other lands surrounding the lands in question have been fully developed by the owners as they are excluded from the acquisition, the inescapable conclusion would be that petitioners have not been dispossessed of the land in question and this piece of 14 guntas of land is not going to affect the layout already formed even if excluded.
14. The question of applicability of Section 24(2) of the New Act to the acquisition made by the BDA came up consideration before this Court and this Court has held in Chikkathayamma's case referred to supra that the provisions of Section 24(2) of the New Act, are applicable to the acquisition made for the benefit of BDA under the provisions of the BDA Act. It is urged that this matter is now the subject matter of Writ Appeal.
15. Be that as it may, as things stand, acquisition proceedings have not been completed. Possession of the petitioners have not been taken over. Petitioners have continued to be in possession and occupation of the land having put up construction thereon. The entire surrounding WP 13592-595/2016 13 area has been developed. In such circumstances, the BDA having not utilized the land for the purpose it was notified, the acquisition proceedings stand lapsed.
16. Therefore, in the light of the facts and circumstances of the case as adverted to above, the BDA cannot proceed to complete the acquisition by now trying to dispossess the petitioner after lapse of several decades from the date the final notification was issued.
17. Hence, these writ petitions are allowed declaring that the acquisition proceedings in so far as the land of the petitioners have stood lapsed.
Sd/-
JUDGE KK