Karnataka High Court
Gautam Kamat Hotels Pvt Ltd vs Bangalore Development Authority on 8 August, 2012
Equivalent citations: 2013 (1) AKR 639, AIR 2013 (NOC) (SUPP) 454 (KAR.)
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1 R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION Nos.11022-24 OF 2011 (LA-BDA)
And WRIT PETITION Nos.37965-970 OF 2011
BETWEEN:
1. Gautam Kamat Hotels Pvt. Ltd.,
A company incorporated under the
Provisions of the Companies Act,
Having its registered Office at
495/496, O.P.H. Road, Bangalore,
and is represented by its Chairman
Sri L R Kamat.
2. Sri L R Kamat,
S/o Late R P Kamat
Aged about 59 years,
R/at Sri Ranga, No.4/4,
Crescent Road, High Grounds,
Bangalore 560 001.
3. Smt. Bhagavathi L Kamat,
W/o Sri L R Kamat,
Aged about 55 years,
R/at Sri Ranga, No.4/4,
Crescent Road, High Grounds,
Bangalore 560 001. ... Petitioners
(By Sri Ramesh Chandra, Advocate)
AND:
1. Bangalore Development Authority,
T Chowdaiah Road, Bangalore,
Represented by its Commissioner.
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2. Spl.Land Acquisition Officer,
Bangalore Development Authority,
T.Chowdaiah Road, Bangalore.
3. State of Karnataka,
Represented by its Secretary,
Housing and Urban Development
Department, Bangalore - 560 001. ... Respondents
(By Sri B V Shankaranarayana Rao, Advocate for R1 & R2:
Sri K S Mallikarjuanaiah, HCGP for R3)
These writ petitions are filed under Articles 226 & 227 of
the Constitution of India, praying to declare that the
improvement scheme by name "Jayaprakashnarayan Nagar 9th
Stage" initiated by it under Annexure -C and C1 has lapsed and
consequently land in Sy.No.31/B, Doddakallsandra belonged to
the petitioner as not vested in the authority and etc.
These writ petitions, coming on for orders, this day, the
Court made the following:
ORDER
The petitioners, who are the owners of the 9 sites (the extent of which aggregates to 2 acres) carved out of the land at Survey No.31/1B of Doddakallasandra Village, are seeking the relief of declaration that the improvement scheme, namely, J.P.Nagar 9th Stage has lapsed. The respondents issued the preliminary notification, dated 17.11.1988 proposing to acquire 1,333 acres, 34 guntas for the formation of J.P.Nagar 9th Stage layout. The final notification was issued on 22.7.1991 in respect of 1,111 acres 36¾ guntas implying that 233 acres were left out of the acquisition proceedings.
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2. Sri Ramesh Chandra, the learned counsel for the petitioners submits that the scheme in question has already lapsed. Out of 433 acres acquired in Doddakallasandra Village, only 12 acres of lands are utilised. He submits that under Section 27 of the Bangalore Development Authority Act, 1976 ('BDA Act' for short), if the BDA fails to execute the scheme within 5 years from the date of the publication in the Official Gazette of the declaration under Section 19(1) of the said Act, the scheme shall lapse and provisions of Section 36 shall become inoperative.
3. Sri Ramesh Chandra submits that under the identical circumstances in the case of R.ADIKESAVULU NAIDU AND OTHERS v. THE STATE OF KARNATAKA BY ITS SECRETARY, U.D.D. AND OTHERS reported in ILR 2011 KAR 3657 involving the acquisition of lands for J.P.Nagar 8th Stage, this Court has already quashed the acquisition proceedings and declared that the scheme has lapsed. He read out the questions formulated by this Court in the said case. They are as follows:
"104. .............................
(1) Can a scheme proposed by the BDA be permitted to be implemented even when there is a failure to 4 execute the scheme in a substantial manner well beyond the statutory period and can a scheme survive for implementation in a very truncated manner?
(2) Can there be any other consequence of a scheme lapsing due to non-execution of a scheme in a substantial manner within the period of five years as per Section 27 of the BDA Act, other than the acquisition proceedings also automatically lapsing on the lapse of the scheme?
4. This Court answered the afore-extracted questions as follows:
"140. In the light of above discussion, answers to the questions as raised above are as under:
Question No.1: A scheme proposed by BDA if is not substantially implemented within a period of five years as is mandated under Section 27 of the BDA Act and has lapsed, there is no question of Court permitting further implementation of the scheme, if it is to the detriment of any person and such a person has sought for relief before Court; and Question No.2: When once the scheme lapsed as per the provisions of Section 27 of the BDA Act, there cannot be any further proceedings for acquisition either, and if the subject land sought to be acquired had not vested in the State Government before lapsing of the scheme, to the extent of the lands not vested in the State Government before the lapsing of the scheme, even the acquisition proceedings lapse, as the acquisition was only for the purpose of implementation of the scheme and to 5 the extent of land not yet vested in the State Government, the scheme having lapsed, there is no possibility of the implementation of the scheme thereafter."
5. Sri Ramesh Chandra submits that in the instant case the publication of the scheme took place on 17.11.1988 and even after two decades, there is no substantial implementation of the scheme.
6. He asserts that the petitioners continue to be in the possession of the property. He submits that the claim of the petitioners to have taken the possession of lands on 30.5.1998 is hollow. He submits that the petitioners were not even issued the notice to hand over the possession of the lands to the respondents. As it is not in dispute that the structures and trees existed on the lands, the issuance of the notice is a mandatory requirement. In support of his submission, he read out para 19 of the Apex Court's judgment in the case of PRAHLAD SINGH AND OTHERS v. UNION OF INDIA AND OTHERS reported in (2011) 5 SCC 386. The said portions are extracted hereinbelow:
"19. The same issue was recently considered in Banda Development Authority vs. Moti Lal Agarwal decided on 6 26.04.2011. After making reference to the judgments in Balwant Narayan Bhagde vs. M.D.Bhagwat, Balmok and Khatri Educational and Industrial Trust vs. State of Punjab, P.K.Kalburqi vs. State of Karnataka, NTPC Ltd., vs. Mahesh Dutta, Sita Ram Bhandar Society vs. Government of NCET of Delhi, Omprakash Verma vs. State of A.P. and Naharsingh vs. State of U.P. this Court laid down the following principles: (Banda Development Authority case, SCC Page 411, para 37)
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."7
7. He brings to my notice the internal annexure to the mahazar stated to have been drawn by the respondents. It discloses that there were 113 trees besides 1 ACC residential building on the land in question.
8. He assails the mahazar, a copy of which is produced as Annexure-R2 to the respondents' statement of objections. The names and addresses of the witnesses to the mahazar are not mentioned at all. The mahazar contains only their signatures. Their identity is not ascertainable. His last ditch submission is that the mahazar is drawn on 30.5.1998. In the notification issued under Section 16(2) of the Land Acquisition Act, 1894, it is shown that the possession is taken on 10.5.1998. Therefore, he would contend that both the mahazar and Section 16(2) notification are unreliable.
9. The learned counsel attacks Section 16(2) notification by pointing out the impossible events mentioned in the said notification. The said notification is dated 1.6.1998. Therefore, it can only refer to acts of taking the possession only till 1.6.1998. However, it mentions that the possession of some lands is taken on 29.7.1998 and 5.1.1999.
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10. He submits that the Apex Court in the case of Prahlad Singh (supra) has held that unless the actual taking of the possession precedes the issuance of the notification under Section 16, no presumption can be raised in favour of the acquiring authority.
11. He also relies on the Apex Court's judgment in the case of SPECIAL LAND ACQUISITION OFFICER, BOMBAY AND OTHERS v. M/S.GODREJ AND BOYCE reported in (1988) 1 SCC 50, wherein it is held that the mere issuance of the notification under Sections 4 and 6 of the Land Acquisition Act, 1894 ('the L.A. Act' for short) do not divest the owner of his rights in the acquired land. All such notifications do not confer any rights on the State Government to interfere with the ownership or other rights in the land.
12. He also sought to draw support from the Apex Court judgment in the case of RAGHBIR SINGH SEHRAWAT v. STATE OF HARYANA AND OTHERS reported in (2012) 1 SCC 792 to advance the submission that when it is not the case of the respondents that the petitioners/their predecessors-in-title were given the notice that the possession of the acquired land would be taken on 30.05.1998 and that the petitioners/their 9 predecessors should remain present at the site, the mahazar has to be dismissed as a self-serving document.
13. He brings to my notice the electricity bills in Annexure B series and telephone bills produced as Annexures B1 and B2 to show that the petitioners have been in possession of the lands in question uninterruptedly.
14. Sri Shankara Narayana Rao, the learned counsel for the respondent Nos. 1 and 2 has raised two threshold objections to the maintainability of these petitions. Admittedly, the petitioners have purchased the lands in question subsequent to the issuance of the acquisition notifications. He submits that a person, who purchases the land in the aftermath of the acquisition notification, does not get the right to resist the acquisition as such. At the most he would be entitled to receive the compensation. The second threshold objection raised by Sri Shankara Narayana Rao is that the petitioners' predecessor-in- title had indeed raised the challenge to the acquisition proceedings in W.P.No.9730/2003. As the said writ petiton is dismissed, the successors-in-interest cannot maintain these petitions. The petitioners' rights cannot be higher or better than those of their vendors.
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15. Sri Shankara Narayana Rao submits that 329 acres out of 1,111 acres are utilised for the implementation of the scheme. He would therefore contend that there is substantial utilisation of the land acquired. In support of his submissions, he has relied on the Division Bench judgment of this Court in the case of THE MYSORE URBAN DEVELOPMENT AUTHORITY AND ANOTHER v. CHIKKABORAIAH AND OTHERS REPRESENTED BY ITS L.Rs. reported in ILR 2011 KAR 1874 wherein it is held that merely because there is dispute about taking the possession and implementing the scheme in so far as the land of the petitioner is concerned, the scheme as such will not lapse when there is substantial implementation of the scheme. He has also relied on another Division Bench judgment, dated 08.03.2012 passed in W.A.Nos.478-480/2012 in the case of KURULINGAPPA AND OTHERS v. THE BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER wherein it is held that the B.D.A. Act does not postulate the preponderant or complete utilisation of the acquired land. He read out para 8 of the said decision. The said paragraph is extracted hereinbelow:
"8. In the present case, it has already been held that the Scheme stood substantially executed. We affirm this view. It also appears to us that there is no reason for us 11 to harbour the suspicion that the present acquisition took within its sway lands which, from the conception of the Scheme were not intended to be utilized for the Nagharabhavi layout. In Girnar Traders-Vs-State of Maharashtra (2011) 3 Supreme Court Cases 1, it has been pithily pointed out that:
"If this entire planned development which is a massive project is permitted to lapse on the application of Section 11 A of the Central Act, it will have the effect of rendering every project of planned development frustrated. It can hardly be an argument that the Government can always issue fresh declaration in terms of Section 6 of the Land Acquisition Act and take further proceedings. Recommencement of acquisition proceedings at different levels of the hierarchy of the State and Planning Authority itself takes considerable time and, thus, it will be difficult to achieve the target of planned development".
16. Sri Shankara Narayana Rao has also relied on the Apex Court's judgment in the case of BANDA DEVELOPMENT AUTHORITY, BANDA v. MOTI LAL AGARWAL AND OTHERS reported in (2011) 5 SCC 394 wherein the action of the concerned state authorities of going to the spot and preparing panchanama showing the delivery of possession was held to be sufficient for recording the finding that the actual possession of the entire acquired land had been taken and handed over to the B.D.A. 12
17. He submits that the taking of the possession of the notified lands by drawing a mahazar is in the usual course of completing the acquisition proceedings. He submits that even if this Court holds that the notification issued under Section 16(2) is vitiated, the act of taking the actual and physical possession of the land in question cannot be disputed.
18. Sri K.S.Mallikarjunaiah, the learned Government Pleader for the respondent No.3 adopts the submissions made by Sri Shankara Narayana Rao.
19. I would take the second preliminary objection first. That the petitioners' vendors had challenged the acquisition proceedings unsuccessfully is no ground to dismiss these petitions. The cause of action for the institution of the writ petitions by the petitioners' vendors and the cause of action for the institution of these petitions are entirely different. In W.P.No.9730/1993 the challenge was to the acquisition perse. In the instant petitions, the cause of action is the lapsing of the scheme. Even when the writ petition was dismissed, the respondents have not utilised the lands in question for executing the scheme in question.
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20. Similarly, the seeking of the relief that the scheme has lapsed and hence acquisition proceedings have lapsed cannot be restricted only to the person, who was the recorded owner at the time of the issuance of the preliminary notification. Therefore both the preliminary objections raised by the respondents are overruled. I propose to dispose of these petitions on merits.
21. The two questions that fall for my consideration are:
(i) Whether the possession of the lands was taken?
(ii) Whether the improvement scheme published on 29.06.1988 is substantially implemented?
22. In Re. question No.1: As held by the Apex Court in the case of PRAHLAD SINGH (supra) there are no hard and fast rules laying down as to what act would be sufficient to constitute the taking of the possession of the acquired land. It depends on the facts and circumstances of each case.
23. Section 16(2) of the said Act states that the fact of taking the possession may be notified by the Deputy Commissioner in the Official Gazette and such notification shall be evidence of such fact. The notification issued under Section 16(2) has great value.
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24. But in the instant case, the said notification is liable to be rejected because of the impossible acts mentioned therein. The notification, dated 01.06.1998 refers to the impossible acts of taking the possession in the subsequent months and years. The notification, amongst other things, contains the following information:
Date of taking Sl. LAC No. Sy. No. Extent possession No.
2. 44/97-98 28/6 1 acre of 13 guntas 29.7.1998
3. 45/97-98 28/7 13 guntas 29.7.1998
14. 494/91-92 91 4 acres 29.7.1998
15. 495/91-92 92 4 acres 05.01.1999
17. 382/91-92 28 22 guntas 30.07.1998
25. 22/97-98 10/3 2 acres 20 guntas 18.06.1998
26. 23/97-98 11/1 24 guntas 18.06.1998
27. 36/97-98 84/1 1 acre 30 guntas 18.06.1998
28. 37/97-98 84/3 2 acres 18.06.1998
29. 321/91-92 91 5 acres 29.07.1998
25. Thus, when the notification itself is dated 01.06.1998, the possession of the lands is stated to have been taken in July 1998 and also in January 1999.
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26. Yet another serious contradiction cannot go unnoticed. The mahazar at Annexure R2 states that the possession of the land is taken on 30.05.1998. On the other hand, Section 16(2) notification (Annexure-R3) states that the possession is taken on 10.05.1998. Because of these impossible acts and destructive self-contradictions, no credence can be attached to such notifications.
27. Now I am left with the examination of the mahazar, a copy of which is produced as Annexure R2. The mahazar is in the cyclostyled form. Some columns are filled in and some are just left blank. The columns for showing the schedule of the property are just left blank. It does not contain the names and particulars of the mahazardars (those who have witnessed the act of taking the possession). The purpose of drawing the mahazar and the affixture of signatures of thereon by the independent witnesses who are present on the spot, is only to establish that the possession is taken, if dispute arises over the issue of taking the possession. When the witnesses' names and addresses are not furnished, merely their signatures are found on the mahazar, this Court finds it hard to accept that the respondents have done anything equivalent to taking effective possession. 16
28. Neither the mahazar nor the statement of objections states that the owners of the lands in question were called upon to hand over the possession or to be present at the spot for witnessing the take over by the respondents. The Apex Court's judgment in the case of BANDA DEVELOPMENT AUTHORITY (supra) does not come to the rescue of the respondents in any way. In the said case, the said Authority, after taking the possession of the acquired lands, constructed the roads, nalas, laid pipelines, erected the electrical polls and lights, carved out plots and allotted them to the people belonging to different categories. In the instant case, it is not even the case of the respondents that the land in question was developed by the B.D.A. in any way after 30.05.1998 on which date they claim to have taken the possession.
29. Coupled with the unacceptable claim of the respondents that the possession is taken, there is the uncontroverted claim of the petitioners of paying the telephone bills and electricity bills.
30. It is profitable to refer to this Court's decision in the case of MEENAKSHI THIMMAIAH AND OTHERS vs. STATE 17 OF KARNATAKA AND ANOTHER reported in ILR 2010 KAR 62, wherein it is held that the mahazars are not reliable, when
(a) the land owners have not signed the mahazar, (b) it is not forthcoming as to from whom the possession is taken and (c) the signatories to the mahazar are not identifiable. This Court has further observed that the possibility of obtaining the signatures of some persons visiting the office cannot be ruled out. Since the possession of the lands remains with the petitioners, mere publication of Section 16(2) of the L.A. Act as the evidence of the fact of taking the possession cannot be accepted.
31. For all the aforesaid reasons, I cannot but deliver the finding that the respondents have not taken the possession of the lands in question on 30.5.1998 (date of mahazar) or on 1.6.1998 (date on which the notification under Section 16 (2) of the Land Acquisition Act is issued) or on any other date. Neither the mahazar nor the section 16(2) notification can be considered as proof for taking over the possession of the land from the petitioners.
32. In re. question No.2: To examine this question, it is necessary to refer to the relevant statutory provisions of Section 18 27 of the Bangalore Development Authority Act, 1976. It reads as follows:
"27. Authority to execute the scheme within five years
- Where within a period of five years from the date of the publication in the Official Gazette of the declaration under sub-section (1) of Section 19,the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative."
33. A perusal of the afore-extracted statutory provisions reveals that the improvement scheme has to be implemented within five years. If there is no substantial execution of the scheme within the said period, the scheme shall lapse and the provisions of Section 36 shall become operative.
34. In the instant case, it is the respondents' version that the land utilisation for the implementation of the Scheme is 329 acres out of 1,111 acres. The land utilisation is not even 1/3 of the acquired land. It is still worse in Doddakallasandra village; out of the total extent of 241 acres 20 guntas acquired in Doddakallasandra Village, only 12 acres are utilised.
35. This Court in the case of R.ADIKESHUVULU (supra) quashed the acquisition proceedings, as the scheme was not 19 implemented within the prescribed period. The Division Bench decision in the case of MUDA (supra) also does not come to the rescue of the respondents because in the said case, the sites were formed in an area of 240 out of 260 acres. Similarly, the respondents cannot draw any support from the Division Bench's judgment in the case of KURULINGAPPA (supra), as what is held therein is that the utilisation of the land need not be complete or preponderant. In the case on hand, the land utilisation cannot be said to be substantial, let alone complete.
36. In a more or less similar situation, this Court in the case of D.NARAYANAPPA vs. THE STATE OF KARNATAKA, BY ITS SECRETARY, HOUSING AND URBAN DEVELOPMENT DEPARTMENT, BANGALORE AND OTHERS reported in ILR 2005 KAR 295 has held that the B.D.A. has no jurisdiction to implement the lapsed and abandoned scheme. If the acquired land is not utilised by the acquiring authority for several years, it has to be held that the said authority has failed to exercise its rights over the land. In such a situation, the right of the land- owner revives.
37. It is also profitable to refer to this Court's decision in the case of MRS.POORNIMA GIRISH v. REVENUE 20 DEPARTMENT, GOVERNMENT OF KARNATAKA AND OTHERS reported in ILR 2011 KAR 574 wherein the acquisition proceedings initiated vide the preliminary notification, dated 08.04.2003 and the final notification, dated 09.09.2003 were held to have become stale and inconclusive, as the respondents did not take the possession of the land and allowed the owner to be in possession of it. This Court has also expressed its concern that what is happening in the name of development is nothing but destruction and haphazard manner of functioning to the detriment of the citizens.
38. Out of 241 acres, 20 guntas of the land acquired in Doddakallasandra, only 12 acres are utilised. Even if the self serving claim of the respondents that the possession was taken on 30.05.1998, they are at a loss to give any explanation as to why they did not do anything for 12 years. It is not their case that they have formed the roads, erected the poles, laid the culverts, formed the sites, etc.,
39. I see no justifiable or compelling reason for the respondents for not implementing the project. It is also not the case of the respondents that the delay in executing the scheme 21 was on account of the petitioners' engaging them in the litigation.
40. No explanation is forthcoming as to why the respondents delayed taking the alleged possession till 30.05.1998, though the final notification was issued seven years prior thereto on 22.07.1990. At all stages, there is negligence and lethargy, if not the dereliction of duty. Taking all these factors into consideration, I hold that there is no substantial implementation of the scheme. The scheme has lapsed and consequently the acquisition proceedings have become inoperative.
41. Answering the two questions accordingly, I allow these petitions by declaring that the scheme and the acquisition proceedings have lapsed in so far as they pertain to the petitioners' lands.
42. No order as to costs.
Sd/-
JUDGE MD/cm/-