Karnataka High Court
Smt Huchamma vs State Of Karnataka on 15 September, 2017
Author: B.S.Patil
Bench: B.S.Patil
WP 21831/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.21831/2016 (LA-BDA)
BETWEEN
SMT.HUCHAMMA
W/O LATE SRI MARAPPA @ CHIKKAMARAPPA,
AGED ABOUT 70 YEARS
R/AT NO.270/B,
1ST MAIN ROAD, 8TH CROSS,
3RD STAGE,
MANJUNATHA NAGAR,
BENGALURU-560 010. ... PETITIONER
(By Sri GOUTHAM CHAND S.F., ADV.)
AND
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
VIKASA SOUDHA,
BANGALORE-560 001
2. BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD,
BANGALORE-560 020,
REPRESENTED BY ITS COMMISSIONER.
3. THE ADDITIONAL LAND ACQUISITION OFFICER,
BANGALORE DEVELOPMENT AUTHORITY,
T CHOWDAIAH ROAD,
BANGALORE-560 020. ... RESPONDENTS
(By Sri VIJAYAKUMAR A.PATIL, AGA FOR R1;
Sri G.M.ANANDA, ADV. FOR R2 & R3)
WP 21831/2016
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT
THE ACQUISITION PROCEEDINGS IN RESPECT OF THE SCHEDULE
PROPERTY VIDE PRELIMINARY NOTIFICATION DT.6.8.1988
[ANNEX-B] ISSUED BY R-2 AND VIDE FINAL NOTIFICATION
DTD.3.11.1990 VIDE ANNEX-C ISSUED BY R-1 IS DEEMED TO
HAVE LAPSED UNDER SECTION 24[2] OF THE RIGHT TO FAIR
COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION,
REHABILITATION AND RESETTLEMENT ACT, 2013 AND GRANT ALL
CONSEQUENTIAL RELIEFS THERETO.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Land bearing Sy. No.40/1 measuring 26 guntas situated in Devarachikkannahalli village, Begur Hobli, Bengaluru South Taluk, was acquired for the benefit of the Bengaluru Development Authority (for short, 'BDA'). Preliminary Notification in this regard was issued on 06.08.1988 followed by Final Notification on 03.11.1990. Award was passed on 09.08.1994.
2. Case of the petitioner is, that upon the death of the original owner, land in question came to be devolved upon his grandson Marappa and the said Marappa having died on 09.05.1993 leaving behind the petitioner and her children, petitioner being the wife of Marappa along with WP 21831/2016 3 her children have succeeded to the estate of deceased Marappa.
3. The main contention urged by petitioner in support of the relief sought seeking declaration that acquisition proceedings have lapsed is, that the acquisition was not completed by taking over possession and by paying compensation to the petitioners. In this regard, he points out that though award has been passed way back in the year 1994, so far, admittedly, compensation has not been either paid to the land owners or deposited before the Civil Court. To substantiate this contention, he invites the attention of the Court to the document produced along with memo dated 11.09.2017 which is a communication addressed by the Additional Special Land Acquisition Officer, BDA, wherein it is stated that compensation amount payable to the land in question bearing Sy. No.40/1 measuring 1 acre 12 guntas situated at Devarachikkanahalli village was kept in RD deposit of the BDA. His further assertion is, that possession of the land has not been taken and that the document produced by WP 21831/2016 4 the BDA along with statement of objections at Annexure- R2(b) cannot evidence taking over possession because the said document is a mahazar drawn on 12.04.1991 prior to passing of the award.
4. Learned Counsel appearing for the respondent-BDA strongly supports the action of the BDA and contends that acquisition has been completed as award has been passed and the amount is kept in RD deposit. He further points out that as petitioners were not notified khathedars, it was open for them to approach the BDA and take compensation by showing their title. He further urges that possession has been taken long back, and therefore, it is not open for the petitioners to now seek any relief befor this Court.
5. Learned Additional Government Advocate supports the contention of the learned Counsel appearing for the BDA.
6. Having heard the learned Counsel for the parties, I find that admittedly award has been passed as back as on WP 21831/2016 5 09.08.1994. So far compensation has neither been paid to the land owners/petitioners nor deposited before the Civil Court. As rightly contended by the learned Counsel for the petitioners, there is no legally acceptable material on record to show that possession of the land has been taken. On the other hand, petitioners have produced RTC extracts for the year 2015-16 at Annexure-A which shows that the land is still recorded in the name of the petitioner
- Huchhamma both in column nos.9 & 12 of the RTC.
7. In similar circumstances, this Court in W.P.No.62545/2016 disposed of on 10.08.2017, has held that if compensation was not tendered or paid, it would not satisfy the requirement of payment of compensation so as to complete the acquisition proceedings and that such conduct on the part of the beneficiary would tantamount to abandonment of acquisition. The observations made in paragraphs 11 & 12 in this connection by referring to the judgment of the Apex Court in the case of ALIGARH DEVELOPMENT AUTHORITY VS MEGH SINGH & OTHERS - AIR 2016 SC 2912, are usefully extracted hereunder: WP 21831/2016 6
"11. Statement of objection is silent with regard to the payment of compensation. Learned counsel for the BDA submits at the bar that compensation has been kept in revenue deposit of the BDA itself. As held by the Apex Court in the case of ALIGARH DEVELOPMENT AUTHORITY VS. MEGH SINGH & OTHERS - AIR 2016 SC 2912, it is the obligation of the acquiring body to tender the amount of compensation to the land loser. If the compensation is not tendered or paid, it will not satisfy the requirement of payment of compensation so as to complete the acquisition proceeding. In this case, the BDA after passing the award has not thought it fit to take over possession of land, form layout in the land in question, let alone paying compensation to the land owner. Therefore, so far as land in question is concerned, the BDA has abandoned the acquisition. Land owner has to be paid compensation before or at the time when possession of the land is taken.
12. After the award is passed, if there is any dispute with regard to entitlement of compensation or apportionment thereof, then, the Land Acquisition Officer is required to WP 21831/2016 7 refer the matter to the Civil Court and deposit the amount of compensation before the Court as required under Sections 30 and 31 of the Land Acquisition Act, which are applicable even to the acquisitions made under the provisions of the BDA Act. Such procedure has not been followed in this case. Therefore, the BDA has consciously chosen not to take possession of the land, pay compensation or form layout in the land belonging to petitioner which is the subject matter in the present writ petition. It is not the case of BDA that it has formed the layout and allotted sites to third parties. Therefore, the irresistible inference is that BDA has abandoned the acquisition with regard to these lands."
8. The above observations are applicable in all force to the facts and circumstances of this case. Hence, in the light of the law laid down by the Apex Court which has been followed by this Court in the aforesaid order dated 10.08.2017 passed in W.P.No.62545/2016, this writ petition deserves to be allowed.
WP 21831/20168
9. Accordingly, this writ petition is allowed. Acquisition of the land in question is declared as having been abandoned and consequently lapsed.
Sd/-
JUDGE KK