Karnataka High Court
K R Ashwathanarayana vs The Commissioner Bangalore ... on 8 January, 2014
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION NO. 14336 OF 2008 (LA-BDA)
AND WRIT PETITION NOS.21738-21739 OF 2010,
AND WRIT PETITION NOS.24305-24309 OF 2012
BETWEEN :
1. K.R.Ashwathanarayana,
S/o Late K.Ramaswamaiah,
Aged about 72 years,
Flat No.A2 Sampoorna-5,
2nd Main, III Block,
Tyagaraajanagar,
Bangalore - 560 028.
2. K.R.Chandrashekar,
S/o Late K.Remaswamaiah,
Aged about 69 years,
R/at No.43, I Block,
Thyagarajanagar,
Bangalore - 560 028.
3. K.R.Narasimha Murthy,
@ Karur R.Murthy,
S/o Late K.Ramaswamaiah,
Aged about 67 years,
Represented by GPA Holder,
K.R.Mohan, No.355, 25th Cross,
9th Main BSK II Stage,
Bangalore - 560 070.
4. K.R.Mohan,
S/o Late K.Ramaswamaiah,
Aged about 65 years,
No.355, 25th Cross,
2
9th Main, BSK II Stage,
Bangalore - 560 070.
5. K.R.Kumar,
S/o Late K.Ramaswamaiah,
Aged about 57 years,
No.1098, 19th Main,
J.P.Nagar II Phase,
Bangalore - 560 078.
6. K.R.Vishwanath,
S/o Late K.Ramaswamaiah,
Aged about 55 years,
No.43, I Block,
Thyagarajnagar,
Bangalore - 560 028.
7. Smt.K.R.Usha,
Aged 62 years,
D/o Late K.Ramaswamaiah,
No.65, 'Annapporna',
C.H.B.S. First Layout,
21st Cross, 6th Main,
Vijayanagar,
Bangalore - 560 040.
8. Smt.K.R.Gayathri,
Aged 55 years,
D/o Late Ramaswamaiah,
No.1324, 'NISARGA',
Kallabalu Branch,
Bannerghatta Post,
Bangalore - 560 083. ... Petitioners
(By Sri V.Rangaramu, Advocate)
AND:
1. The Commissioner,
Bangalore Development Authority,
Bellary Road,
Bangalore.
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2. The Special Land Acquisition Officer,
Bangalore Development Authority,
Bangalore. ...Respondents
(By Sri K.M.Nataraj, Senior Counsel for
Sri K.Krishna, Advocate for R1 and R2)
These writ petitions are filed under Articles 226 and 227 of
the constitution of India praying to quash the endorsement dated
25.8.2008 copy at Annexure-A and to direct the respondent to
distribute sites to the petitioner as per the Notification dated
27.11.2002, i.e., Annexure -C and etc.
These writ petitions, coming on for hearing, this day, the
Court made the following:
ORDER
The petitioners are agitating that they are entitled to get ten more incentive sites in addition to 10 incentive sites already allotted to them. They have also, inter alia, raised the challenge to Rule 3 of the Bangalore Development Authority (Incentive Scheme for Voluntary Surrender of Land) Rules, 1989 (1989 Rules for short). The sum and substance of the petitioners' grievance is that they have lost about 18 acres of lands besides the adjoining phot karab lands of 2.39 acres on account of their compulsory acquisition for the purpose and benefit of the Bangalore Development Authority ('BDA' for short).
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2. Sri V.Ranga Ramu, the learned counsel for the petitioners submits that the petitioners are all the coparceners, anubhavadars and khathadars of the lands in question. He submits that under Rule 3 of the 1989 Rules, the fixing of the outer number of incentive sites at 10 is without any basis. If 10 acres of land are compulsorily acquired, the land-owners would be entitled to 10 incentive sites; similarly if 20 acres of land are compulsorily acquired, then there is no reason why 20 incentive sites should not be allotted to the land-losers. The fixation of the outer limit of 10 sites is arbitrary. He submits that under Section 6 of the Hindu Succession Act, 1956 all the petitioners are entitled to get the incentive sites in proportion to the acquisition of the extent of their land.
3. Sri Ranga Ramu read out the head-note portion from the Division Bench judgment of this Court in the case of M.PRITHVIRAJ AND OTHERS vs. SMT.LEELAMMA N. AND OTHERS reported in ILR 2009 Kar. 3612 for advancing the contention that as per the Hindu Succession Act, a co- parcener is entitled for co-parcenery property. 5
4. The learned counsel also relies on the Privy Council decision in the case of MT.INDER KUER vs. MT.PRITHIPAL KUER AND ANOTHER reported in AIR (33) 1945 Privy Council 128. He read out its Head Note portion, which is as follows:
"For partition physical division of property is not necessary. Once the shares are defined there is a severance of joint status. The parties may then make a physical division of the property or they may decide to live together and enjoy the property in common. But the property ceases to be joint immediately the shares are defined and thenceforward the parties hold as tenants- in-common. Separation of family can be proved by the conduct of the family and the attendant circumstances"
5. He also read out Head Note B and paras 16 and 17 from the Division Bench decision of this Court in the case of NARAPPA GOUDA AND OTHERS vs. SMT.TULASAWWA AND OTHERS ETC. reported in AIR 2009 Kar 180, which are as follows:
"(B) Hindu Succession Act (30 of 1956), S.6, Proviso -
Notional partition - Partition sought by Hindu widow against her son - In the absence of any testamentary document, plaintiff the widow, son and deceased 6 propositus, all being the Class-I heirs, they simultaneously take equal share.
16. Explanation to proviso to Section 6 of Hindu Succession Act, 1956, provides for notional partition, as if the partition has taken place little before the death of propositus i.e., Venkanagouda Patil in this case.
17. In the light of the proviso to Section 6, which contains the formula for fixing the share of the claimant and the explanation contains the formula for deducting the share of the deceased (Venkanagouda Patil) by application of proviso in the absence of any testamentary document, plaintiff - the widow, defendant No.1 - son and deceased propositus, all being the Class-I heirs, they simultaneously take equal share."
6. Nextly, he relies on the Notes of Cases in the case of LILABAI CHAVAN AND ANOTHER vs. DEOKABAI KADAM AND ANOTHER reported in AIR 2008 (NOC) 2050 (Bom.). It reads as follows:
"Hindu Law - Joint family property - Oral partition - Document of partition written subsequently - Can only be treated as memorandum - It does not require registration
- However it can be used for proving severance of status.
In the instant case, it is not disputed that the suit property was a joint family property. Where document in respect of partition comes into existence after the oral 7 partition has already taken place, it will neither require stamp nor registration. The partition-deed would require registration and stamp duty only if interest is created in specific property by or under that document. If there is an oral partition, that oral partition itself creates interest in that specific property and not the document which comes into existence later. The document can be used for proving the severance of status."
7. Nextly, he complains of the discrimination. He submits that for acquiring 21 acres of land from Sanjeevappa, H.Eraiah, Nagaraja and Galappa, the owners of the land at Sy.Nos.88 of the same village (Hemmige Village), 21 incentive sites are allotted. The learned counsel submits that all the petitioners are put on the individual notices in the award proceedings. Therefore, they are to be treated as the owners of their extents of the land out of the land totally measuring 18 acres.
8. Sri K.M.Nataraj, the learned Senior Counsel appearing for Sri K.Krishna for the respondents submits that the 1989 Rules are made to give incentive to those who voluntarily give up the possession of the lands notified for acquisition. He submits that the providing of the incentive 8 scheme by the 1989 Rules is in addition to the benefits that the land-losers are entitled. He further submits that on receiving the compensation amount in accordance with the provisions of the Land Acquisition Act, 1894, the incentive sites are offered on out-right sale basis. He read out the provisions contained in Rule 4(a), (d) and (f) of the 1989 Rules. They are as follows:
"4. Conditions of allotment - The allotment under Rule 3 shall be subject to the following conditions -
(a) The allottee shall be liable to pay the value of the site fixed by the authority and shall also be liable to pay any other charges which the authority may levy in this behalf from time to time;
..........
(d) If two or more persons jointly own such a land, they shall together be entitled to the site allotted under these Rules;
........
(f) The allotment shall be on out-right basis. The allottee shall meet necessary registration and other expenses for obtaining the sale deed."
9. The learned Senior counsel also brings to my notice that as per the original 1989 Rules, the land-losers were entitled to allotment of only 3 sites measuring 40' x 60', if 9 they surrender more than 5 acres of land. With effect from 27.11.2002 the same is raised from 3 sites to 10 sites (40' x 60') at the rate of one site per acre but not exceeding 10 sites).
10. The learned Senior Counsel submits that the petitioners have already been allotted 20 sites of 30' x 40' dimension instead of 10 sites of 40' x 60' dimension. He submits that the allotment is in response to the application, which the petitioners had filed under the 1989 Rules. On the applying and obtaining the allotment, the petitioners are estopped from raising the challenge to the validity of the 1989 Rules.
11. He submits that the possession of the acquired land is taken from the petitioners on 16.02.2002. As per the Rules prevailing as on the date of taking over the possession of the acquired land, the petitioners were entitled to only 3 sites of 40' x 60' dimension or 6 sites of 30' x 40' dimension. Nonetheless, because of the coming into force of the more liberal and beneficial rules, the full benefit is given to the petitioners.
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12. He submits that the petitioner Nos. 1 to 6 have in response to the issuance of the preliminary notification themselves stated that they are the joint khatha holders of the land measuring about 18 acres. This is evident from Annexures R1 to R6 to the respondents' counter. He submits that the inheritance khatha vide MR No.1/76-77 is a joint khatha of the petitioner Nos.1 to 6. He also brings to my notice that the compensation amounts pursuant to the passing of the award by the Land Acquisition Officer are disbursed jointly to the petitioner Nos.1 to 6. In this regard, he brings to my notice the copy of the cheque, dated 02.04.2002 (Annexure-R9), which is drawn in favour of the petitioner Nos.1 to 6. He also brings to my notice the affidavit filed by the three petitioners, namely, K.R.Chandrashekhar, K.R.Mohan and K.R.Kumar, wherein they state that they are the co-owners of the property in question. A copy of the affidavit is at Annexure-R8.
13. The learned Senior Counsel submits that there is absolutely no pleading on the allotment of the incentive sites made to Sanjeevappa and his brothers. He submits that 11 Sanjeevappa, H.Eraiah, Nagaraja and Galappa are separate khatha holders. As per Rule 4(d), if two or more persons jointly own the acquired land, they shall together be entitled to the sites under the 1989 Rules.
14. In the course of rejoinder, Sri Ranga Ramu submits that the discrimination need not necessarily be pleaded in the memorandum of the writ petition. He asserts that 21 sites are allotted to Sanjeevappa and his brothers for acquiring 21 acres from them.
15. The submissions of the learned counsel have received my thoughtful consideration.
16. The first question that falls for my consideration is whether Rule 3 of the 1989 Rules is liable to be struck down. My emphatic answer is 'no' for the following reasons:
(i) The scope for striking down the rule is rather limited.
Unless the rule violates the provisions of the Constitution or it is without competence or it runs contrary to the Statute under which it is made, it cannot be invalidated. It is not shown to me that the rule violates any provision of the 12 Constitution or of the B.D.A. Act or that it is without competence.
(ii) The petitioners have not made the State Government, which has framed the Rules in question a party to the writ petition.
(iii) The 1989 Rules contain beneficial provisions for the land-losers. Striking down Rule 3 would not be in the interest of anybody, including the petitioners. It is worthwhile to notice that the petitioners have already got 20 sites of the dimension of 30' x 40' dimension, which are equivalent to 10 sites of 40' x 60' dimension.
(iv) The fixation of the maximum limit of 10 sites is a prerogative of the Government. To meet the changing requirements of time, the Government may revise it appropriately. The original Rules provide only for the allotment of 3 incentive sites which number is now raised to 10 sites with effect from 27.11.2002.
(v) This is second round of litigation. The petitioners did not raise the challenge to the 1989 Rules, when they first 13 filed W.P.No.20897/2005. They have not challenged the said Rules before making the application for allotment under the very same Rules. Further, when they made the application, they did not say that they are making the application without prejudice to their right to raise the challenge to the validity of the said Rules.
17. The next question that falls for my consideration is whether any relief can be given to the petitioners and if so what relief.
18. The petitioners cannot have their claims enlarged based on the letter, dated 27.11.2002 (Annexure-C), as the same also prescribes the allotment of 10 incentive sites as per the amended Rules.
19. None of the authorities relied upon by the petitioners' side comes to the rescue of the petitioners in any way.
20. In the earlier round of litigation (W.P.No.20897/2005) this Court has observed in para 4 as follows:
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"The question whether share of the petitioners exceeds 3 ½ acres or not, and each of the petitioners are entitled for an additional site measuring 60' x 40' would certainly depend on the katha and also the extent of land they are entitled. In the absence of any such material being produced before the Bangalore Development Authority by the respondents, I am of the view that the Bangalore Development Authority cannot allot two sites to each of the petitioners of the dimension 60' x 40'."
21. It is also not in dispute that this order has attained finality. Further, pursuant to the said order, the petitioners submitted representation to the B.D,.A. which is considered by the B.D.A. by its endorsement, dated 25.08.2008 (Annexure-A). The B.D.A. cannot be held to be at fault for issuing the said endorsement, as the petitioners have not produced any document to show that they possess separate khathas.
22. The petitioners cannot be content throwing the allegation of discrimination without laying the foundation for the same in the pleading. Therefore, based on the allegation that Sanjeevappa and others have been given 21 sites, no direction can be issued to the B.D.A. to allot 18 or 20 sites. 15
23. However, just because nothing is mentioned about Sanjeevappa in the writ petition, much less furnishing any material particulars, the doors cannot be shut out to the petitioners. The ends of justice would be met by my directing the petitioners to file a fresh representation furnishing the material particulars of the cases of Sanjeevappa and others. If one such representation is submitted within three weeks from the date of the issuance of certified copy of today's order, the same shall be considered and disposed of by the B.D.A. within one month from the date of receipt of its representation. It is the Court's anxiety that equals cannot be treated unequally. It is not known whether Sajeevappa and others are the joint khatha holders or separate khatha holders. It goes without saying that if Sajeevappa and others are the separate khatha-holders, the question of giving any relief to the petitioners by the B.D.A. would not arise. However, if Sanjeevappa and others are also the joint khatha- holders and are indeed given 21 sites of 40' x 60' dimension for surrendering 21 acres of lands, the petitioners cases also 16 have to be considered in accordance therewith. It is trite that the similarly placed persons cannot be treated dissimilarly.
24. This petition is accordingly disposed of. No order as to costs.
Sd/-
JUDGE Cm/-