Karnataka High Court
Sri B A Srinivasa Gupta vs State Of Karnataka on 9 August, 2012
Author: A.S.Bopanna
Bench: A.S. Bopanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
WRIT PETITION NO. 8873/2011 (LA-BDA)
BETWEEN:
SRI. B.A. SRINIVASA GUPTA,
AGED ABOUT 52 YEARS,
S/O. LATE B.S.AMARNARAYAN GUPTA,
NO.16,
VANIVILAS ROAD,
BASAVANAGUDI,
BANGALORE.
... PETITIONER
(BY SRI K.SUMAN, ADV.)
AND:
1. STATE OF KARNATAKA,
BY ITS SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
M.S. BUILDING,
BANGALORE.
2. BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE - 560 020.
BY ITS COMMISSIONER.
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3. THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE - 560 020.
4. THE SPECIAL LAND ACQUISITION OFFICER,
BANGALORE DEVELOPMENT AUTHORITY,
T.CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE - 56 0 020.
5. THE ASSISTANT EXECUTIVE ENGINEER,
NO.2, SOUTH SUB DIVISION,
BANGALORE.
... RESPONDENTS
(BY SRI M.V. ADITHI, ADV. FOR R2 TO R5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE NOTICE DATED.24.2.11, PASSED BY THE R5 I.E., ANN-R
AS ARBITRARY, ILLEGAL & UNJUST.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioner is before this Court assailing the notice dated 24.02.2011, which is impugned at Annexure-R to the petition. The petitioner has also sought for direction that the respondents do not 3 have authority to demolish the structures or dispossess the petitioner from the petition schedule premises. The details of the extent of property has been indicated in the schedule.
2. The petitioner claims to be the son of Sri B.S. Amarnarayan Gupta. The claim made is in respect of the property bearing Sy. No. 55, situated at Deevetige Ramanahalli, Kengeri Hobli, Bangalore South Taluk. The father of the petitioner was the owner of the extent measuring 1 Acre 10 Guntas in the said Survey no. The said land was proposed to be acquired for the benefit of Bangalore Development Authority to form Road and industrial sites. The final notification is dated 01.08.1990. Though the entire extent of property measuring 1 Acre 10 Guntas was notified as per Annexure-E, the award passed as per Annexure-F is only in respect of 35 Guntas of land. As such, at that juncture itself, 15 guntas of land in the said land has been given up by Bangalore Development Authority in the process of acquisition.
3. Further, the father of the petitioner had assailed the 4 notification at an earlier point in W.P. No. 21725/1990 on the ground that the nature of indication of acquisition varies from preliminary notification to the final notification. This Court however up held the contention of the respondent-BDA and dismissed the writ petition by the order dated 20.09.1996. Thereafter, in respect of the said 35 guntas of land which was the subject matter of acquisition, the respondent - Bangalore Development Authority has taken possession of an extent of 18 guntas as per the Mahazar drawn (Annexure-H to the petition) The possession was taken on 06.11.1997. In respect of the remaining extent, the petitioner claims to have been in possession and enjoyment of the property having paid the property taxes and having entered his name in the records of the Corporation.
4. It is also the contention of the petitioner that he had established a weigh bridge in the said suit schedule property and is carrying on business in the said premises. Presently, the respondents have issued the impugned notice dated 24.02.2011 calling upon the petitioner herein to handover possession of the remaining extent of property in Sy. No. 55, which is the subject matter in this petition. The 5 respondents have filed their objection statement. The manner of acquisition which has been averred in the objection statement is in the same manner as stated by the petitioner. Insofar as the possession, having been taken earlier, it is stated in the objection statement that possession of 18 guntas of land was taken by the respondents, which is the subject matter of acquisition.
5. In the background of the above, the contention on behalf of the petitioner is that, the respondents-Bangalore Development Authority cannot take possession of the remaining extent of 17 guntas since, the said extent has not vested in the Bangalore Development Authority as contemplated under Section 16 of the Land Acquisition Act. It is the case of the petitioner that the possession of 18 guntas was taken far back as on 06.11.1997 and the period of five years has lapsed thereafter and therefore the scheme sanctioned by acquiring the entire property has lapsed as contemplated under Section 27 of the Bangalore Development Authority Act.
6. In this regard, reference is made to the judgment of the 6 Hon'ble Supreme Court in the case of Offshore Holdings Private Limited v. Bangalore Development Authority and Others, wherein, the aspect of the scheme being lapsed in terms of Section 27 of the Act had arisen for consideration and in that context, the scope of vesting of the property as contemplated under Section 16 of the Land Acquisition Act was considered. The decision therein is that the scheme would not lapse, if the property has vested in terms of the Section 16 of the Land Acquisition Act. In such event, the land owner would not be in a position to contend that the scheme has lapsed, since the property which has vested with the acquiring authority could be made use by the authority for any other purpose as well, but if it has not vested, it would lapse. It is in that context, contended that in the instant case, the land measuring 17 guntas has not vested and the scheme had therefore lapsed. Therefore at this juncture, by a mere issue of notice by the respondents it cannot direct the petitioner to hand over possession. In that regard, there is no contention with regard to the scheme still being in the process of being implemented in the objections filed by the respondents.
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7. Be that as it may, in the instant case, as noticed the respondents also admit to the fact that the extent of 18 Guntas only was taken possession on 06.11.1997 under the Mahazar at Annexure- H to the petition. In such circumstance, in respect of the remaining extent of 17 Guntas, when the possession had not been taken and nearly 15 years have lapsed by now and further when no material is made available on the records to indicate that the possession of that extent was also taken and the said property had vested in the Bangalore Development Authority, the Bangalore Development Authority cannot issue the notice as has been presently done as per Annexure-R. In that regard, the Hon'ble Supreme Court in the above cited decision has also indicated that respondents would have to reacquire the property, if the same is found necessary and shall not seek for possession of the same after the scheme has lapsed. Therefore, keeping this aspect in view, I am of the opinion that the notice dated 24.02.2011, Annexure-R is not sustainable and the same is accordingly quashed.
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8. Consequently, it is held that the respondents would not be entitled to dispossess the petitioner from the said extent of 17 Guntas as well as the 15 Guntas in Sy.No.55, which had been left out earlier from the acquisition process, unless the same is done in accordance with law in the manner stated above.
9. The writ petition is accordingly allowed. The parties to bear their own costs.
Sd/-
JUDGE ST*