Karnataka High Court
Sri H V Nandakumar vs The State Of Karnataka on 2 February, 2016
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY 2016
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
WRIT PETITION NOS.13374-13375/2013 (LA-BDA)
BETWEEN:
Sri H.V. Nandakumar,
S/o late H.V. Krishnamurthy,
Aged about 60 years,
Residing at No.81, 4th Main,
Malleshwaram,
Bangalore-560 003. PETITIONER
(By Shri Aditya Sondhi, Senior Counsel for Shri Santhosh S.
Nagarale, Advocate)
AND
1. The State of Karnataka
by its Secretary
Department of Revenue,
Vidhana Soudha,
Bangalore-560 001.
2. The Commissioner,
Bangalore Development Authority,
Kumara Park West,
Bangalore-560 020.
3. The Deputy Commissioner
For Land Acquisition,
Office of B.D.A,
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Kumara Park West,
Bengaluru-560 020. RESPONDENTS
(By Smt. B.P. Radha, HCGP., for R1
Shri K. Prasad Hegde, Advocate for R2 and R3)
These writ petitions are filed under Articles 226 and 227 of
the Constitution of India praying to declare the Scheme known as
BSK 5th Stage is lapsed in so far as the petitioner's land is concerned
in view of the Section 27 of the Bangalore Development Authority
Act.
These writ petitions coming on for hearing this day, the Court
made the following:
ORDER
Heard the learned Senior Advocate, Shri Aditya Sondhi, appearing for the learned counsel for the petitioner.
2. Perused the statement of objections and additional statement of objections filed on behalf of the respondents.
3. It is the case of the petitioner that the land bearing Sy. Nos.83 and 84 of Uttarahalli village, Bangalore South Taluk, measuring 01 acre 04 guntas and 06 acres 24 guntas respectively, totally measuring 07 Acres 28 guntas belonged to the petitioner's family. There was said to be a registered -3- partition deed dated 24.03.2010 between the petitioner and his brother and his mother. According to the petitioner, under the said partition deed, he has been allotted portion of the land subject to the result of these writ petitions, which seek to question the acquisition proceedings initiated by the Bangalore Development Authority (BDA) in respect of the subject lands as well as other lands for the purpose of formation of BSK V Stage layout, whereby, the BDA has sought to acquire a total extent of 1458 acres 21 guntas from various villages, namely, Uttarahalli, Marasandra, Vaddarapalya, Doddakallasandra, Yalachenahalli, Halagevaderahalli, Channasandra, Bikasipura, Vasanthapura and Konanakunte and it was accordingly, notified under Section 17(1) of the Bangalore Development Authority Act, 1976 (hereinafter referred to as the 'BDA Act', for brevity). It is claimed that an extent of 500 acres 6 guntas of land out of the proposed extent to be acquired was declared in the preliminary notification from Uttarahalli village, which was inclusive of the land of the petitioner's family bearing Sy. -4- Nos.83 and 84. The petitioner and his family had filed objections to the said preliminary notification. However, a final notification under Section 19 of the BDA Act was issued as on 16.09.1997. However, in the course of the proceedings, it was found that large tracts of land were dropped from the acquisition proceedings and notification under Section 48 of the Land Acquisition Act, 1894, (hereinafter referred to as the 'LA Act', for brevity) came to be issued from time to time, the details of which are furnished as per Annexures 'J' to 'Z15' to the writ petitions.
4. The petitioner's grievance is that in view of the large portions of lands for the proposed acquisition having been dropped from the acquisition proceedings, the formation of the layout or the implementation of the Scheme itself has been rendered futile and it is in this background that the petitioner has approached this Court to contend that unless the Scheme was implemented substantially within a period of five years from the date of issuance of the final notification, the rigour of -5- Section 27 of the BDA Act shall operate. Therefore, Section 36 of the BDA Act under which the provisions of the LA Act, are made applicable, would no longer be available and therefore, the Scheme would lapse. Since the possession of the land in question has not been taken, the acquisition, in turn, would also lapse and it would not be feasible for the BDA to form any layout at all.
5. It is in this vein that the petitions are filed of which the learned Senior Advocate would elaborate upon while pointing out that in respect of the very layout, large number of petitions have been filed before this Court, which have been allowed on the footing that the Scheme has not been substantially implemented and he would point out that the respondents have come on record and have filed statement of objections as well as additional statement of objections furnishing particulars of lands that have been actually acquired and formed into a layout and the extent of layout formed is 116 acres 27 guntas out of the total extent of 1458 acres 21 guntas -6- proposed for the acquisition apart from large extents having been withdrawn from the acquisition proceedings. Therefore, it cannot be said that there is a substantial implementation of the Scheme and seeks that in view of the earlier view taken by this Court in several petitions, the present petitions also be allowed on similar terms.
6. The statement of objections filed on behalf of the BDA., is to the effect that the relationship of the petitioner with his family is denied and is not admitted and it is also claimed that possession of the land in question has been taken and there are appropriate records to substantiate the same and once possession has been taken, the land has vested in the State. It is not open for the petitioners to claim that the Scheme has lapsed on the footing that out of the total extent of lands sought to be acquired, only a small percentage has been developed into a layout for the reason that once the land is vested in the State, even if the Scheme is said to have lapsed, the acquisition does not and therefore, the question of the petitioner seeking to -7- recover the land in question does not arise and in this regard, reliance is placed on Annexures filed along with the statement of objections and additional statement of objections.
7. In the above circumstances, the first question, whether there has been a substantial implementation of the Scheme, would have to be answered in the negative. The admitted documents furnished, namely, details of the land notified for the BSK V stage is provided at Annexure 'R8' to the additional statement of objections, which is as follows:
Details of land notified for BSK Vth Stage Sl. No. Details Acre - Guntas 1 Built-up Area 279-06 2 Deleted subsequent to the orders in 58-03 W.Ps. (Hon'ble High Court) 3 De-notified land 205-18 4 Layout formed by BDA 116-27 5 Government Land 255-04 6 Land under litigation 544-03 Total notified land 1458-21 Further, the statement showing the details of the layout formed by BDA in Banashankari V Stage is as follows:-8-
Statement showing the details of layout formed by BDA in Banashanakari 5th Stage Sl. No. Name of the village Extent (A-G) 1 Uttarahalli 16-15 2 Vaddarapalya 49-19 3 Doddakallasandra 2-08 4 Yalachenahalli 3-09 5 Halagevaderahalli 10-33 6 Bikasipura 17-39 7 Vasanthapura 16-24 Total 116-27 It is to be noticed that in Uttarahalli, the total extent of land, which has been formed, measures 16 acres 15 guntas. The total extent of land, which has been formed in all of seven villages is 116 acres 27 guntas. There are other tabular statements produced to indicate the lands, which are not available for the formation of layout, such as areas which are built-up, which exceed 279 Acres. Therefore, since the final notification was of the year 1997 and if the state of affairs as of the year 2014 is as above, it cannot be said that the Scheme has been implemented substantially.-9-
8. The next question would be, even if the Scheme has lapsed, whether the acquisition can be said to have lapsed if the possession of the land in question has been taken, would have to be answered with reference to the documents that are produced. The award notice at Annexure 'R2' dated 31.12.1999 is produced indicating that the compensation amount has been determined at Rs.22,86,037/- and that there is handing over of possession of the land in question. There is also a mahazar said to have been drawn up pursuant to the notification under Section 16 of the LA Act. This is a mahazar, which is similar to the mahazars, which had been produced in the earlier proceedings, namely, cyclostyled forms with blanks filled in and many blanks not filled at all. While indicating persons, who may have signed the documents, there are names of one Kenchappa, Narayanagowda, Thimmanna, Venkatesh and Shankarappa, but there is no parentage of these persons indicated nor their addresses shown. If the BDA., is called upon to establish the said document, it would have to field these
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persons as witnesses and in the absence of their identity and addresses, it cannot be said that the BDA., would be in a position to satisfy this Court as to the veracity of this document. Therefore, on the face of it, it could be said that it is a nebulous document, which would not establish the taking over of possession of the land in question by the BDA. It is in this vein that such documents, which were produced in the earlier proceedings to substantiate taking over of possession have been negatived. There is no hesitation in this case as well to negate the document, which seeks to establish the taking over of possession. The mere recording of taking over of possession of land by itself would not satisfy this Court unless it was also capable of being established if the parties were called upon to tender evidence. On the basis of such nebulous documents, it would not be possible for the BDA., to proceed further in that direction. Therefore, it cannot be said that the possession of the land in question has been taken.
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9. In that view of the matter, not only the Scheme has lapsed, but even the acquisition can be said to have lapsed in view of no further action having been taken by the BDA pursuant to the notifications issued in forming the layout.
Consequently, the petitions are allowed. Insofar as the petitioner's land is concerned, the Scheme is declared to have lapsed. In view of disposal of writ petitions, I.A.I/2016 stands disposed of.
Sd/-
JUDGE sma