Karnataka High Court
M P Gundappa vs State Of Karnataka on 19 July, 2017
Author: B.S.Patil
Bench: B.S.Patil
WP.11063/2014
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2017
BEFORE
®
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.11063/2014 (LA-BDA)
BETWEEN
M.P.GUNDAPPA,
AGED ABOUT 68 YEARS,
SON OF LATE PUTTASHAMAIAH,
R/AT ANJANADRI,
MALLATHAHALLI MAIN ROAD,
BANGALORE-560056. ... PETITIONER
(By Sri C.M.NAGABUSHANA, ADV.)
AND
1. STATE OF KARNATAKA,
BY ITS SECRETRY,
DEPARTMENT OF URBAN DEVELOPMENT,
M S BUILDINGS,
BANGALORE-560001.
2. BANGALORE DEVELOPMENT AUTHORITY,
K.P.WEST EXTENSION,
BANGALORE-560020,
REP. BY ITS COMMISSIONER.
3. THE ADDITIONAL LAND ACQUISITION OFFICER,
BANGALORE DEVELOPMENT AUTHORITY,
K.P.WEST EXTENSION,
BANGALORE-560020. ... RESPONDENTS
(By *Sri VIJAYAKUMAR A.PATIL, AGA FOR R-1,
Sri C.R.GOPALASWAMY, ADV. FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT
THE ACQUISITION PROCEEDINGS INITIATED VIDE PRLY.
*Corrected vide Chamber Order dated 12.09.2017
WP.11063/2014
2
NOTIFICATION DT.19.1.1989 AT ANNEXURE-B, ISSUED BY THE R2,
& FINAL NOTIFICATION DT.19.1.94, AT ANNEXURE-C ISSUED BY
THE R1, IN RESPECT OF THE PETITION SCHEDULE PROPERTY IS
CONCERNED AS LAPSED AND ETC.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. Petitioner is the owner of land bearing Sy.No.124/2 measuring 2 acres situated at Nagadevanahalli, Kengeri Hobli, Bengaluru South Taluk. The said land was notified for acquisition for the purpose of formation of Jnanabharati Layout. Preliminary notification under Section 17(1) of Bangalore Development Authority Act (for short, 'the BDA Act') was published in the Official Gazette on 19.01.1989, followed by final declaration issued under Section 19(1) of the BDA Act on 19.01.1994. Copies of the notifications are produced at Annexures-B & C respectively. Though in respect of adjoining lands award was passed, in respect of land in question, no award was passed.
2. Petitioner's contention is that during the year 2005, officials of respondent - BDA wanted to take over possession of the land without passing any award and without paying any compensation. Noticing the interference, petitioner filed WP.11063/2014 3 O.S.No.9227/2005 before the City Civil Court, Bengaluru City. The suit was contested by the BDA. The Civil Court passed a judgment and decree dated 01.10.2010 decreeing the suit for injunction thereby restraining respondents 1 & 2 herein from interfering with petitioner's peaceful possession of the suit schedule property till he was dispossessed by adopting due process of law. Copy of the said judgment and decree is produced at Annexure-D. Name of the petitioner is found in the revenue records. Copy of RTC for the year 2013-14, which is produced at Annexure-A2 discloses that both in Column No.9 and Column No.12 of RTC extract, name of the petitioner is recorded as khatedar and anubavdar.
3. It is urged by petitioner that as the respondents have not taken steps to complete the acquisition proceedings by passing an award and taking over possession, the acquisition proceedings stood abandoned in so far as the land in question. It is further urged that petitioner has not received any notice as contemplated under Sections 9 & 10 of the Land Acquisition Act (for short, 'the Act') till the date of filing of writ petition. It is also contended that without following the mandatory provisions of the Land Acquisition Act, respondent - BDA appears to have WP.11063/2014 4 passed an award antedating the same making it to appear that award had been passed on 20.12.2013 awarding compensation at the rate of Rs.1,30,000/- per acre for dry land.
4. It is urged by learned counsel for petitioner that the said action of the BDA tantamounts to fraud on the statute and the power vested in it, inasmuch as for 2 acres of land situated within the limits of Bengaluru City, market value has been determined at Rs.2,60,000/- by passing an award on 20.12.2013 for the acquisition of the year 1989. It is mainly urged that as held by this Court in catena of decisions, power conferred on an authority has to be exercised in a reasonable manner and reasonable exercise of power includes exercising the same within a reasonable period. In the instant case, he urges that respondent - BDA cannot exercise its power to complete the acquisition by passing the award and taking over possession after 23 years from the date of preliminary notification.
5. Learned counsel for petitioner invites the attention of the Court to Article 31A and 300-A of the Constitution to contend that if respondent - BDA is permitted to take over possession of land of the petitioner by enforcing the award passed in the year WP.11063/2014 5 2013, then it would deprive the constitutional right of the petitioner.
6. Learned counsel for the BDA submits that though no notification under Section 16(2) of the Act has been issued, possession of the land was taken by drawing a mahazar and compensation has been deposited before the Civil Court. He also submits that on 20.02.2014, a cheque for a sum of Rs.2,30,910/- has been deposited in the Civil Court in respect of Sy.No.124. Copy of the letter addressed by the Additional Land Acquisition Officer, BDA, Bengaluru to the Principal City Civil Judge, Bengaluru is produced along with the statement of objections. He takes me through the statement of objections filed to contend that as there is no limitation prescribed for passing an award under the BDA Act and as Section 11-A of the Land Acquisition Act had no application to the acquisition under the BDA Act, merely because there was delay in passing the award and taking over possession, acquisition could not be declared as lapsed or abandoned.
7. Learned Additional Government Advocate supports the contention urged by the counsel for the BDA.
WP.11063/20146
8. Upon hearing the learned counsel for all the parties, I find that petitioner is sought to be deprived of his land pursuant to the preliminary notification issued on 19.01.1989. As the BDA tried to interfere with the possession of land without passing any award and without paying compensation, petitioner has asserted his right by approaching the Civil Court in O.S.No.9227/2005. The Civil Court decreed the suit restraining the BDA from interfering with the possession of the petitioner without adopting due process of law. This decree was passed on 01.10.2010. A specific finding has been recorded in the said judgment that possession of land continued with the petitioner and no award had been passed by the BDA. Even thereafter, the BDA did not pass any award. It is only on 20.12.2013, the BDA claims to have passed an award determining compensation payable to the petitioner. Even after passing the award, there is nothing to show that possession of land has been taken over and no notification under Section 16(2) of the Land Acquisition Act has been issued. Therefore, it cannot be said that BDA has completed the acquisition proceedings and land has vested in the State, so that it could be transferred in favour of BDA.
WP.11063/20147
9. A perusal of the letter addressed by the Additional Land Acquisition Officer, BDA, Bengaluru to the Principal City Civil Judge, Bengaluru, which is produced along with the statement of objections shows that cheque was forwarded to the Civil Court. Admittedly, there are no other claimants in respect of the land in question measuring 2 acres comprised in Sy.No.124 of Nagadevanahalli Village except the present petitioner. Therefore, question of depositing the amount under Sections 30 and 31(2) of the Act before the Civil Court did not arise. Provisions of Sections 30 and 31(2) of the Act can be resorted to for depositing the amount in the Civil Court, only if there is doubt with regard to entitlement of the claim amount or if there is rival claim wherein question of apportionment arises. Therefore, it is un-understandable how the BDA could elect to forward the cheque to the Civil Court. Question of reference under Sections 30 and 31(2) of the Act does not arise in the instant case. It is, therefore, clear that the BDA, having hastily passed an award, has taken a hasty decision to forward the cheque to the Civil Court without examining the requirements in law.
WP.11063/20148
10. Apart from all this, the important question that presents itself for consideration is:
'can the petitioner be deprived of his land now without paying just and fair compensation based on the preliminary notification issued in the year 1989 and final declaration of 1994 which was not acted upon for a period of nearly 23 years?'.
If the action of the BDA in passing the award after 23 years is recognized as legal, it would tantamount to forcing the landowner to receive market value of the year 1989 (year of issuance of preliminary notification). This will be quite contrary to the mandate of Article 300-A and Article 31A of the Constitution. The right to property is now recognized as a human right apart from being a constitutional right. The State, no doubt, is entitled to acquire the land for public purpose and to that extent, the individual right has to yield to public interest, but that can only be achieved by ensuring that private individual is not deprived of his property except by due process of law and except by paying fair and just compensation that too expeditiously. Even rehabilitation of the land loser has been also insisted.WP.11063/2014 9
11. The Apex Court has held in number of judgments that where the acquisition proceedings are not completed by passing an award and paying compensation within a reasonable period, even in the absence of any limitation prescribed statutorily for completing acquisition, the acquisition proceedings would stand lapsed. This is one case where the said principle squarely applies. Useful reference can be made to the following judgments on this aspect:
i) THE STATE OF GUJARAT Vs. PATEL RAGHAV NATHA & OTHERS - (1969) 2 SCC 187;
ii) MANSARAM Vs. S.P.PATHAK & OTHERS - (1984) 1 SCC 125;
iii) RAM CHAND & OTHERS Vs. UNION OF INDIA & OTHERS - (1994) 1 SCC 44.
12. As regards the assertion made by the counsel for the BDA that possession has been taken by drawing a mahazar on 15.02.2014, I am afraid the said contention cannot be accepted. A copy of the mahazar is placed for perusal of the Court. It is found in a printed format and does not show the names or addresses of the persons who have allegedly attested the mahazar. Printed format only shows that blanks were filled up and does not disclose whether the land owner was present or absent because both expressions are found mentioned stating WP.11063/2014 10 that 'land owner was present/land owner was absent'. In such circumstances, no importance can be attached to such mahazar. Dealing with such mahazars and its effect, this Court in the order dated 18.04.2016 passed in W.P.No.2905/2016 has observed in paragraph 4 as under:
"4...........Even insofar as the claim of having taken physical possession, is concerned, even though reliance is sought to be placed on Annexure R-4, it can hardly be accepted as it is plain that the said document is not readily acceptable. This is the view taken in a large number of petitions before this court, where such document which is said to be mahazar is a standard format, with blanks casually filled in and the signatures of certain unknown persons having been obtained as witnesses to the taking of physical possession. The said document is signed by unknown persons. Therefore, the parentage or address or age is not revealed and only their signatures forthcoming could hardly be accepted. As already observed by this court, an authentic document would be necessary to establish that factum. The BDA ought to take the matter to its logical conclusion, in that, if the BDA were to be called upon to prove the document, it would in turn require the BDA to examine persons. It would well neigh be impossible for this court to accept that the WP.11063/2014 11 physical possession had indeed been taken. It is not the case of the BDA that the land having been allotted has been taken possession of by third parties and that they have put up construction thereof. Though there is bald claim of having allotted the land to third-parties, no further particulars are provided to indicate that they have taken possession and put up construction and therefore the case of the BDA cannot be accepted. The physical possession having been taken remaining in doubt and the admitted circumstance that the compensation amount has been kept in a revenue deposit would not amount to payment in the eye of law and consequently, not only the scheme would lapse insofar as the petitioner's land is concerned, the acquisition itself would lapse and it is so declared.
The petition is accordingly allowed. The acquisition proceedings in respect of the petitioner's land stand quashed."
13. In the result and for the foregoing, the inescapable conclusion is that the BDA has abandoned the acquisition proceedings and cannot be now permitted to proceed with the acquisition initiated during the year 1989. Hence, petitioner is entitled to succeed. Writ Petition is, therefore, allowed. WP.11063/2014 12 Acquisition proceedings are declared as lapsed in respect of the land in question.
Sd/-
JUDGE PKS