Karnataka High Court
Dr K S Sundaram vs The State Of Karnataka on 10 June, 2013
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
WRIT PETITION Nos.16015-16035/2013 (LA-BDA)
BETWEEN:
1. Dr.K.S.Sundaram,
Aged about 61 years,
S/o K.A.Sanjeevi Chetty,
Presently At Padma Sanjeevini Clinic,
No.17/1, Patalamma Temple Street,
Near South End Circle,
Basavanagudi, Bangalore - 560 004.
2. Dr.Pattabhi Raman,
Aged about 70 years,
S/o Late V.Ananta Charlu,
R/at No.HA-I, 2nd Block,
Krishna Regancy Apartment,
Tata Silk Farm,
23, K.R.Road, Basavanagudi,
Bangalore - 560 004.
3. Dr.Ramya Gangappa,
Aged about 43 years,
D/o Dr.Gangappa,
R/at No.186, 38th Cross,
5th Block, Jayanagara,
Bangalore - 560 041.
4. Smt.C.Thayamma,
Aged about 65 years,
W/o Dr.B.Mari Gowda,
R/at No.2541, Guthal Post,
Thavarekere,
2
Mandya - 571 403.
5. Smt.D.V.Padmavathy,
Aged about 53 years,
W/o Dr.G.K.Swethadri,
R/at No.D42, Srirama Sadana,
Gokula, MSR Road,
Bangalore - 560 054.
6. Smt.Rabia Banu,
Aged about 54 years,
W/o Mohemmed Haneef,
R/at No.22, S.R.Krishnappa Garden,
Tilak Nagar, Jayanagara,
Bangalore - 560 041.
7. Dr.N.Narayana Swamy,
Aged about 71 years,
S/o Narasimhaiah,
R/at No.920, 22nd Main Road,
4th T Block, Jayanagara,
Bangalore - 560 041.
8. Smt.Syeda Jabeen.F,
Aged about 54 years,
W/o Mr.Mohd.Margoob Ur.Rehman,
R/at No.24, HMI House,
Near Holy Mother English School,
Puttenahalli East,
J P Nagar, Bangalore - 560 078.
9. Smt.T.D.Banumathi Ammal,
Aged about 60 years,
W/o T.G.Dhanraj,
R/at No.341, 6th Cross,
Lakshmi Layout, Puttenahalli,
Bangalore.
10. Smt.S.K.Nazeem Sultana,
Aged about 43 years,
W/o S.K.Sajjad Ahmed,
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R/at No.4, Khazi Street,
Basavanagudi,
Bangalore - 560 004.
11. Sri K.Monoharlal,
Aged about 62 years,
S/o Late Kishen Chand,
R/at No.119, Church Road,
3rd Cross, Shanthinagar,
Bangalore - 560 027.
12. Smt.Renu M.Makhija,
Aged about 57 years,
W/o K.Monoharlal,
R/at No.119, Church Road,
3rd Cross, Shanthinagar,
Bangalore - 560 027.
13. Sri Sunil M.Makhija,
Aged about 38 years,
S/o K Monoharlal,
R/at No.119, Church Road,
3rd Cross, Shanthinagar,
Bangalore - 560 027.
14. Sri S.K.Sajjad Ahmed,
Aged about 54 years,
S/o S Abdul Khaluq,
No.4, Khazi Street,
Basavanagudi,
Bangalore - 560 004.
Represented by his GPA Holder,
Sri Mohammed Safiulla,
Aged about 67 years,
S/o Abdul Rahaman,
R/at No.5/2, Church Road Cross,
Basavanagudi,
Bangalore - 560 004.
15. Smt.S.K.Nazeem Sulthana,
Aged about 43 years,
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W/o S.K.Sajjad Ahmed,
R/at No.4, Khazi Street,
Basavanagudi,
Bangalore - 560 004.
Represented by his GPA Holder,
Sri Mohammed Safiulla,
Aged about 67 years,
S/o Abdul Rahaman,
R/at No.5/2, Church Road Cross,
Basavanagudi,
Bangalore - 560 004.
16. Sri Adam Challawala,
Aged about 57 years,
S/o Shaikh Mohsin,
R/at No.15, Royal House F Street,
Kalasipalyam,
Bangalore - 560 002.
17. Sri Mohammed,
Aged about 55 years,
S/o Sri Challawala,
R/at No.15, Royal House F Street,
Kalasipalyam,
Bangalore - 560 002.
18. Sri V.Balaji,
Aged about 52 years,
S/o R.Venkatraman,
R/at Flat No.2, Roopashri Apartment,
No.42, Govindappa Road,
Basavanagudi,
Bangalore - 560 004.
19. Sri Rahaman Khan,
Aged about 68 years,
S/o Late Mohammed Khan,
R/at No.7/2, 7th Cross,
LBF Road, Bangalore - 560 004.
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20. Smt.Nayeema Khanum,
Aged about 51 years,
W/o Rahaman Khan,
R/at No.7/2, 7th Cross,
LBF Road, Bangalore - 560 004.
21. Smt.C.Chandrakala,
Aged about 30 years,
W/o M.R.Venugopal Reddy,
R/at Arekere Village,
Vinayakanagar,
IIM Post, Bannerghatta Road,
Bangalore - 560 067. ...Petitioners
(By Sri K.K.Vasanth, Advocate)
AND:
1. The State of Karnataka,
Department of Urban Development,
Vikasa Soudha, 4th Floor,
Bangalore - 560 001.
Represented by its Secretary.
2. The Commissioner,
Bangalore Development Authority,
T.Chowdaiah Road,
Kumara Park West,
Bangalore - 560 020. ... Respondents
(By Sri H.T.Narendra Prasad, AGA for R-1:
Sri G.S.Kannur, Advocate for R-2)
These writ petitions are filed under Articles 226 and 227 of
the Constitution of India praying to call for the records from the
respondents and the parties and etc.
These writ petitions coming on for preliminary hearing in
'B' group this day, the Court made the following:
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ORDER
The petitioners are the purchasers of the sites in the residential layout (Doctors Layout) carved out of 1 acre 30 guntas of the land at Survey No.122/1 of Gottigere village. The said layout is formed by the Indian Medical Association Housing Co-operative Society Limited. The land in question along with the other lands totally measuring 198.19 acres was proposed for acquisition vide preliminary notification, dated 17.3.2001 issued under Section 17(1) and (3) of the Bangalore Development Act, 1976 ('the said Act' for short). The final notification under Section 19(1) of the said Act was issued on 4.3.2002. The compulsory acquisition of land is for the formation of the layout called 'Further Extension of Anjanapura Layout' by the second respondent Bangalore Development Authority ('BDA' for short). The petitioners have called into question the preliminary and final notifications insofar as they pertain to their sites.
2. Sri K.K.Vasanth, the learned counsel for the petitioners submits that no layout whatsoever is formed out of the lands in respect of which the final notification is issued. He submits that the scheme itself is abandoned. Large chunks of the said lands 7 are either withdrawn from the acquisition or just have remained like that with no development whatsoever.
3. He submits that the objections filed by the petitioners in response to the preliminary notification have not been considered at all. He asserts that the possession is still with the petitioners. He read out para 23 from the memorandum of the writ petition. It is extracted hereinbelow:
"23. It is to be noticed that, almost all the Sy. Nos. in Gottigere village which were proposed to be acquired by BDA have been deleted except Sy.No.122/1 and the BDA could not form any layout in Gottigere village due to deletion of almost all the Sy.Nos. from acquisition and as such the entire acquisition proceedings is allowed to lapse, no useful purpose will be served in proceeding with the acquisition of the land in question, as the BDA cannot form any full fledged layout in an extent of 1 acre 30 guntas in Sy. No.122/1 of Gottigere village."
4. The learned counsel complains of hostile discrimination. He submits that the authorities are not justified in insisting that the lands in question are required for completing the scheme, despite deleting the similarly placed lands. To advance this submission, he has relied on the Division Bench's judgment, dated 31.10.2011 passed in W.A.Nos.3825/2005 c/w 2622- 24/2004.
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5. Sri Narendra Prasad, the learned Additional Government Advocate appearing for the respondent No.1 submits that the petitioners have purchased the sites in question after the issuance of the preliminary notification; in some cases they have purchased the sites after the issuance of the final notification itself. He submits that as the sites are vacant, there is no need to issue the notice calling upon the occupants to hand over the possession of the sites. As the occupants have refused to affix their signatures, the signatures of the witnesses are obtained while drawing the mahazar at the time of taking over the possession. He submits that even if the scheme is not implemented, the properties do not revert back to the petitioners, as they are vested in the BDA.
6. Sri G.S.Kannur, the learned counsel for the respondent No.2 has also raised a preliminary objection to the petitioners' approaching this Court after 12 longs years of the issuance of the final notification.
7. He submits that the Special Land Acquisition Officer has taken the possession and in turn handed it over to the Engineering Department of the B.D.A. He submits that the 9 scheme is substantially implemented. He submits that the properties in question are vested in the B.D.A.
8. On the Court questioning him on certain aspects of the matter, he submits as follows, based on the instructions:
(a) Out of 52 acres 34 guntas of Gottigere village, covered by the final notification, 13 acres 13 guntas are de-notified.
(b) The layout is formed and sites are allotted on an extent of land measuring 23 acres 31 guntas.
(c) The award amounts are deposited in the Reference Court on 01.02.2005; nobody has claimed or withdrawn the said amount.
9. As far as the delay on the part of the petitioners in approaching this Court and some of them purchasing the lands after the issuance of the impugned notifications is concerned, they may not be entitled to have the acquisition proceedings quashed.
10. But the larger question of whether the scheme has lapsed by the operation of Section 27 of the said Act remains to be examined. Section 27 of the said Act reads as follows: 10
"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."
11. It is not in dispute that the original scheme emphasizes the requirement of utilization of the land measuring 198.19 acres in Gottigere village, for which extent the preliminary notification was issued. However, the final notification was only for ¼ of the extent shown in the preliminary notification - 52 acres 34 guntas. In the said extent of 52 acres 34 guntas, 13 acres 13 guntas were de-notified. The B.D.A. is left with 39 acres 21 guntas for implementing its scheme. In that 39 acres 21 guntas, the B.D.A. has formed the layout only on an extent measuring 23 acres 31 guntas. No cogent explanation whatsoever is forthcoming as to why the remaining 15 acres 30 guntas have remained unutilized.
12. This Court's decision in the case of B.KRISHNAPPA vs. BANGALORE DEVELOPMENT AUTHORITY, BANGALORE AND OTHERS reported in 2011 (5) Kar.L.J. 515 is of immense 11 guidance for deciding this case, wherein it is held that unless the scheme is implemented substantially, it lapses. When the scheme lapses, the acquisition proceedings also lapse.
13. It is also profitable to refer to this Court's decision in the case of D.NARAYANAPPA vs. STATE OF KARNATAKA reported in ILR 2005 Kar.295 wherein it is held that if the acquired land is not utilized for several years by the acquiring body or authority for the purpose for which it was acquired, it is to be held that the acquired body or authority fails to exercise its rights over the land. In such a situation, the right of the landowner revives. At every stage of the proceedings, the sloth, if not lethargy, is discernible. Even after 13 years of the issuance of the final notification, 15 acres 9 guntas have remained unutilized. I have therefore no hesitation in holding that the acquisition proceedings have lapsed.
14. The next question that falls for my consideration is whether the land in question would continue to be vested in the B.D.A.?
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15. To show that the vesting of the land in B.D.A. has taken place, the necessary pre-requirement is that the possession of the land ought to have been taken by the Government from the occupiers in a manner known to law. Thereafter it ought to have been transferred to the B.D.A. If these two pre-conditions are not present, the Court will be unpersuaded to accept that the vesting has taken place. As is held by the Apex Court in the case of PRAHLAD SINGH AND OTHERS vs. UNION OF INDIA AND OTHERS reported in (2011) 5 SCC 386 the vesting of the land under Section 16 of the Land Acquisition Act, 1894 pre supposes the actual taking of possession and till that is done, the legal presumption of vesting cannot be raised. The relevant paragraphs of the said decision are extracted hereinbelow:
"19. The same issue was recently considered in Banda Development Authority v. Moti Lal Agarwal decided on 26-4-2011. After making reference to the judgments in Balwant Narayan Bhagde v. M.D.Bhagwat, Balmokand Khatri Education and Industrial Trust v. State of Punjab, P.K.Kalburqi v. State of Karnataka, NTPC Ltd v. Mahesh Dutta, Sita Ram Bhandar Society v. Govt. of NCT of Delhi, Omprakash Verma v. State of A.P. and Nahar Singh 13 v. State of U.P. this Court laid down the following principles: (Banda Development Authority case, SCC p.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 a 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 panchanama. 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.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of 14 Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken."
20. If the present case is examined in the light of the facts which have been brought on record and the principles laid down in the judgment in Banda Development Authority case it is not possible to sustain the finding and conclusion recorded by the High Court that the acquired land had vested in the State Government because the actual and physical possession of the acquired land always remained with the appellants and no evidence has been produced by the respondents to show that possession was taken by preparing a panchnama in the presence of independent witnesses and their signatures were obtained on the panchnama. .............
22. Respondents 3 to 6 have not placed any document before this Court to show that actual possession of the acquired land was taken on the particular date. Therefore, the High Court was not right in recording a finding that the acquired land will be deemed to have vested in the State Government."
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16. I may usefully refer to this Court's decision in the case of D.NARAYANAPPA (supra). The said portions are extracted hereinbelow:
"71. (xi) Assuming that BDA took possession of the land on 28.12.1976, from whom it took possession, how it took possession and how and when the structures upon the land came-up, are not known to it and the same is not stated in its statement of counter. In the decision reported in BALWANT's case referred to supra it is held that actual possession of the land must be taken and mere taking symbolic or paper possession is not sufficient to prove the fact of taking possession of the acquired land by the Government. In the instant case, if BDA had taken actual possession of the land, it could not have allowed the structures to come up on the land. Nothing prevented it from forming sites and allotting the same to public simultaneously when the sites in the surrounding areas were formed as per the Master Layout Plan produced by it and allotted under the relevant Rules applicable for allotment."
17. This Court in the case of MEENAKSHI THIMMAIAH AND OTHERS vs. STATE OF KARNATAKA BY ITS SECRETARY, URBAN DEVELOPMENT DEPARTMENT AND 16 ANOTHER reported in ILR 2010 Kar.62, has held that the lands vest with the Government only if the possession is taken in a manner as provided under Section 16(2) of the Land Acquisition Act; and thereafter transfer of the same to the Urban Development Authority as provided under Section 36(3) of the Karnataka Urban Development Authorities Act, 1987 has to take place. The last part of para 27 of the said decision reads as follows:
"27. ...................... That apart, the petitioners/owners have not signed the so called mahazars. From whom possession is taken by the Revenue Inspector is not forthcoming. The mahazars are signed by some signatories whose identity is not known. The possibility of obtaining signatures of some persons visiting the office cannot be ruled-out. Therefore, it has to be held that possession of the acquired lands were not taken over from the petitioners in accordance with law. Consequently, Notification issued under Section 16(2) of the L.A. Act has no value. In other words, by mere issuance of such Notification it cannot be concluded that possession of acquired lands was taken in accordance with law."
18. In the light of the case-law, to which the elaborate references are made hereinabove, let me examine whether the 17 respondents' claim that the possession of the land is taken has any acceptability?
19. Whether the petitioners were put on any valid notice calling upon them to handover their possession? The second respondent's stand is that the award notice itself calls upon the petitioner to hand over the possession on 08.09.2003. The award notices produced in Annexure R4 series bear the date 01.09.2003. The note at the end of the award notice shows that their dispatch took place only on 05.09.2003. On what date they were taken to the post office, on what date they were served on the occupiers is not forthcoming. Under these circumstances, it is hard to believe that the notice which bears the dispatch-date as 05.09.2013 is served on the occupiers before 08.09.2013, the date on which they were required to handover the possession.
20. At Annexure R-5 is the mahazar, dated 05.05.2002 for having held the inspection of the land for ascertaining the malkies standing thereon. The said mahazar has the signatures of three persons. In the said mahazar, there is no mentioning of their full names, much less their addresses. 18
21. After the inspection on 05.04.2002, which the respondents claim to have conducted, nothing happens for a period of one year four months. On 08.09.2003 the first respondent claims to have taken the possession of the lands. The possession mahazar is produced as Annexure R-6. Annexure R-6 contains the signatures of five persons but those five persons are not identifiable at all. Their names and addresses are not shown at all. The mahazar is prepared on a cyclostyled form. The alternative columns are not even struck off. The two alternative columns as to whether the owner is present or not present have just remained like that. As one of the alternative columns is not struck off, it is not even knowable from the mahazar as to whether the landowners were present or not.
22. If the possession of the lands in question came to be taken on 08.09.2003, it is not known why the Government waited for one year, one month. The act of the taking over the possession on 08.09.2003 is published in the Gazette on 15.10.2004 (Annexure-R8). Just because no period of limitation is prescribed for publishing the act of taking over the possession, 19 it does not mean that it could be published any time. It has to be published within a reasonable time.
23. It is precisely under similar circumstances that this Court in the cases of D.NARAYANAPPA AND MEENAKSHI THIMMAIAH (supra) has disbelieved the claim of the respondent authorities to have taken over the possession.
24. For yet another reason too, this case deserves to be allowed.
25. The Government cannot adopt different yardsticks for different people in the matter of withdrawal of the lands for acquisition. The respondents have not placed any material as to why 13 acres 13 guntas of the lands covered by the final notification came to be withdrawn from the acquisition. If the said de-notified lands and the lands in question possess the same features, the respondents are not justified in clinging to the acquisition of these lands.
26. In holding so, I am fortified by the Apex Court's judgment in the case of RADHY SHYAM (DEAD) THROUGH LRs. Vs. STATE OF UTTAR PRADESH AND OTHERS reported 20 in (2011) 5 SCC 553. The Apex Court has this to say in para 86 of this decision:
"86. We also find merit in the appellants' plea that the acquisition of their land is vitiated due to violation of the doctrine of equality enshrined in Article 14 of the Constitution. A reading of the survey report shows that the committee constituted by the State Government had recommended release of land measuring 18.9725 ha. Many parcels of land were released from acquisition because the landowners had already raised constructions and were using the same as dwelling units. A large chunk of land measuring 4.3840 ha was not acquired apparently because the same belonged to an ex- Member of the Legislative Assembly. The appellants had also raised constructions of their land and were using the same for residential and agricultural purposes. Why their land was not left out from acquisition has not been explained in the counter- affidavit filed by the respondents. The High Court should have treated this as sufficient for recording a finding that the respondents had adopted the policy of pick and choose in acquiring some parcels of land and this amounted to violation of Article 14 of the Constitution. Indeed it has not been pleaded by the respondents that the appellants cannot invoke the 21 doctrine of equality because the other parcels of land were illegally left out from acquisition."
27. It is also helpful to refer to the Apex Court's judgment in the case of HARI RAM AND ANOTHER vs. STATE OF HARYANA AND OTHERS reported in (2010) 3 SCC 621. The relevant paragraphs are extracted hereinbelow:
"40. It is true that any action or order contrary to law does not confer any right upon any person for similar treatment. It is equally true that a landowner whose land has been acquired for public purpose by following the prescribed procedure cannot claim as a matter of right for release of his/her land from acquisition but where the State Government exercises its power under Section 48 of the Act for withdrawal from acquisition in respect of a particular land, the landowners who are similarly situated have a right of similar treatment by the State Government. Equality of citizens' rights is one of the fundamental pillars on which the edifice of the rule of law rests. All actions of the State have to be fair and for legitimate reasons.
41. The Government has obligation of acting with substantial fairness and consistency in considering the representations of the landowners for withdrawal from acquisition whose lands have been acquired 22 under the same acquisition proceedings. The State Government cannot pick and choose some landowners and release their land from acquisition and deny the same benefit to other landowners by creating artificial distinction. Passing different orders in exercise of its power under Section 48 of the Act in respect of persons similarly situated relating to the same acquisition proceedings and for the same public purpose is definitely violative of Article 14 of the Constitution and must be held to be discriminatory."
28. For all the aforesaid reasons, I allow these petitions by declaring that the impugned acquisition proceedings have lapsed in so far as they pertain to the petitioners' sites. No order as to costs.
Sd/-
JUDGE MD/cm/-