Karnataka High Court
Smt Dhanalakshmi vs The Aircraft Employees House Building on 22 September, 2009
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2235' DAY OF SEPTEMBER 2009
PRESENT
THE HONBLE MR. JUSTICE V. GOPALA "
AND
THE HONBLE MR. JUSTICE K.
W.A.NO.1794/i2{):O'?f_[BDAA} C/vs:
W.A.NO. 1651 /'E.0__'g:r' {BDA}. '_ * -- -'
IN w.A..1§IO.1?94-.OE 2007
BETWEEN:
1 SMT DHAI1fALAKS_IiMI'
A"GED'AE3QU'Ffi37_YEARS .
R/AT I€O.3:2y'.11,'9T""1A"MAIN, 3RD CROSS
BTM IS? STA'OjE._ ,
BAN'€';AL.ORE'.-.?}9, ~ I APPELLANT
_ (EY"SRI.G.S.vISIDé\7ESHwARA, LEARNED SENIOR
' '~1cO11NSEL EOR M/S'*'iNDUS LAW, ADV.)
1 THE AIRCRAFT EMPLOYEES HOUSE BUILDING
DOg_OPERAtIIVE SOCIETY LIMITED
I _ NO 14, IST STAGE.
» ' "~._OPP. TO BID HOSPITAL
'- ..=K.H.ROAD
BANGALORE-29
V' H2 THE BANGALORE DEVELOPMENT AUTHORITY
@
KUMARA PARK WEST
BAN GALORE-20
REPRESENTED BY_ ITS COMMESSIONER
THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY .
HOUSING AND URBAN DEVELOPMENT ---- .j, '
DEPARTMENT _
M S BUILDINGS
DRAMBEDKAR VEEDHI
BANGALORE-1 -
MRS ETHEL ELLEN _
NO 2, CORNWELL"RO1'_&D§--.V' ~ "
LANGFORD TOWN = '
BANOALORE25 A '*-,.'"~l.'.:,,1.RESpONDEN'1'S
(BY PROFESSOE?:.RAVEVA'R1'vEA'KUMAR,=SENIOR COUNSEL
FOR SR1. SHA.S.fIIKIRL9gN'--vSH£."15FY FOR C /RI *
SRLBASAVARAJ V 'SABFLMD -AND "SR1.K.KRISHNA, ADVS.
FOR R.--L_2L,A'ND"SE;_,fr.1:R;SHNA,_.,AD'V. FOR R-4.
GOVTERND/ILEW1' ADv'oCAf'1E FOR R-3}
THLS. IS FILED U/S 4 OF THE
KARNATAKA H1OH"AcOUR'r ACT PRAYING TO SET ASIDE
THE ORDER PASSED=_IN"'THE WRJT PETITION NO.12053/O3
D1-¥§'EDSFO8/O8'/2007.
IN W.A.NO. 1651 OF 2007
Is;IRAN ELLEN ENTERFRLSES
.. A ERSHIP FIRM
REPRESENTED BY ITS MANAGING PARTNER
A KUMAR JOHN RAMU,
KUMAR JOHN RAMU
S/O DR M RAMU
AGED ABOUT 41 YEARS
M
ETHEL ELEEN RAMU
W/ O DR M RAMU
AGED ABOUT 78 YEARS
ANANDA DAVID RAMU
S /0 DR M RAMU
AGED ABOUT 38 YEARS
KOKILA JANE RAMU
W/O JIGNESH PATEL
AGED ABOUT 39 YEARS
ALL ARE R/O No.2, 'ELLEN _
CORNWELL ROAD _ A
LANGFORD TOWN -
BANGALORE-580 025 O G
2 '. APPELLANTS
{Ey Sri T KRISHNA & M"/S' ASSOEIAEES)
AND:
1
.EEVE:LOE:\aENT AUTHORITY
PARK WEST _
<.EA_2xIOIALO"~txE~:s:-6c}.O:z0' -
EEPRESENEEI)' Ey"-IIS COMMISSIONER
_ _THE"AII2CEAEI'»_ENI'PLOYEES HOUSE
ISUILDINC; CO OPERATIVE SOCIETY LTD
3,4, E.CROSS';"0PPOSITE TO
BIO HOSPITAL
_
. IEAIXEGAZIJ-ORE-560 027
OF KARNATAKA
~~ REPRESENTED BY ITS
SECRETARY AND COMMISSIONER
G G TO GOVERNMENT OF KARNATAKA
HOUSING 8: URBAN DEVELOPMENT
DEPARTMENT, M S BUILDINGS
BANGALORE-I RESPON
4
{BY PROFESSOR RAVIVARMA KUMAR, SENIOR COUNSEL
FOR SR1. K SHASHIKIRAN SHETTY FOR C / R2
SRLBASAVARAJ V SABARAD. ADV. FOR Rwl
GOVERNMENT ADVOCATE FOR R-3}
THIS WRIT APPEAL IS FILED U/S 4 OE THE
KARNATAKA HIGH COURT ACT PRAYING TO SE'I'fA-SIDE
THE ORDER PASSED IN THE WRIT
NO.3901/2002 DATED 08/O8/2007. I " A' .
RESERVED ON :21.04.2009
PRONOUNCED ON : 22.09.2009
THESE\NRnfAPPEALSI0DnNSEEEENWHEARD,A&b
RESERVED FOR JUDGMENT, COMING "ON EQR,
PRONOUNCEMENT THIS -DAY... KESHAVAIa&flR.g1YA}Wi,
DELIVERED THE FOLLOWINLV ,
QDDGM
These appeaisviaréjdire0f¢d.A"agéci3nSt the common
ordefadatéed V8,"f8.,/::2O:O7._:ipfissed by the learned Single
Judge in W.P.NoS.3901/2002 and
those petitions filed by the
D' L' p01ia,D;tS"Eh:ér.ein.
Vappeuam; in w.A.No.:'794./2007 is the
petitioflerv in W.P.No.12053/O3 and the appeliants in
v§f.A,No.1051/2007 are the petitioners in W.P.No.
V3901/02. V
remove the fencing erected around the land on the
ground that the Government has granted the land to the
Society. Thereafter, the first petitioner in W.P.390____l'/O2
filed the suit in O.S.No.5505/94 against
Venkatesh and the BDA on the file of the "
Court, Bangalore for the relief of-p'ermar.5_en_tV1
During the said proceedings, it
State Government has issuedhppreliininaryj final it
notifications for acquisition;"oii'*large--_eXtent"of'Vland in
Kundlu and Singasandra': the land
bearing H h'Sur:vivey 12A. A ' hnmediately thereafter,
W.P.NoV;'.?,(l322:lbe filed seeking quashing the
acquisition"~proeeedings':"lDuring the pendency of the
petition, l'i:3r'1e'" society approached the Writ
i.HPe"to*ri.aurnicab1y settle the matter and accordingly
a sett1eVn'ie'nt- vvas arrived at between the parties which
"Was redlfced into Writing in the form of agreement dated
A 1V4;..]_li§.I99O, whereunder the Society gave up its claim
over the schedule property viz., land measuring 2 acres
&.
9
20 guntas including 3 industrial sheds and the
petitioners gave up their claim over the portion of-cthe
land for the purpose of forming the road
be used by both the parties. The said
also accompanied by a sketch
be used for forming the road the td
retained by the Writ Petitioners;ltgwas in the
light of the agreement.yeiitei-iedbetween the parties,
a joint memo dated diilyVs'i,ggned by all the
parties w:as.Vv'fiied""'before the Court
haélibeén settled out of Court
and a ..-passed to that effect by the
society onlflfi/V_l2/V sought for dismissai of the
petitiorilégisyvithdrawn. In the light of the joint
"iiririt'_j.petition was dismissed as Withdrawn by
order 1 / 1997. Thus the petitioners continued
rernairi in possession and enjoyment of the schedule
A prcperty including the industrial sheds. As per the CDP
...d£ited 5/1/1995, Sy. No. 81/2A is reserved for
10
industrial purposes and the industrial sheds are in
existence over the schedule property since 1984 arid at
no point of time the petitioners were dispossessed.-from
the land. Of late, the petitioners came to knovv
society by playing fraud on the petitioners
suppressing the material facts:v"regardi'ng~:
giving up its claim in respect. of schedulpe"_iyplroperty'
favour of the petitioners petitioners: continuing "V
to remain in possession offlthe the fact
that the schedule property fv»reserViuf§;C1l--V*'for industrial
purposellin"thVfe_ plan approved by the
BDA property as civic arnenity
site._.'[_'he approvai accbided by the BDA showing the
propertyaslva civic amenity site is against and
of the revised CDP dated 5/ 1/1995.
As property is reserved for industrial
"*purpos-es} in the CDP, the BDA could not have approved
the layout plan submitted by the society showing the
....schedule property as a civic arnenity site. Taking
ii
advantage of the approved layout plan, the office
bearers and officials of society in collusion the
officials of the BDA are attempting to demolish=..l_tiie
existing structures on the schedule property '
attempting to form roads though they or, if
authority to do so. Therefore, the ipetitioners_have=.no,
alternative but to seek relief han__ds
8. Respondent No} SociVe'ty_ 'filed -statement of
objections denying the :ivthetl.V:petit.ioners in both the petitions._ Ti'he_ so;ciety'::co_n'tended the land in question ._ 'surrounding land, in all, measuring about i3()()fv.,,acres came to be acquired pursiiant to th'e..p:re1irninary notification dated 5.9.1988 »issit,eti.,:_t:n-.:1:e'i~, __Section 4(1) and the final notification 'dated ésV§'i9:.,19:s9 issued under Section 6(1) of the Land Acqt1isition4'Act and in both these notifications the name "i.ffof'lfKhpatedars as well as Anubavadars in respect of the ' lands in question were notified. However, none of them 'filed objections to the notification. Thereafter award 12 Came to be passed on 4.5.1990, which came to be approved by the Government on 25.1 1.1990. Thereafter the possession of the acquired lands were taken.» on 2.4.1992 and in this regard a notification 2 16(2) of the Act came to be issued on was published in the KarnatakaE.'éa'_:f.Aette'«_onA Thereafter the possession of _the was to the society on _'I'he" fiirther V contended that after;..y_:tl*.e the land was handed over, the lay....o_ut by obtaining necessary sites were allotted to the members it was further contended that after 4°ab_out';.siX_ years of issuing final notification andlorag after over the possession of land, late Writ Petition in w.1:>.2o322/1995 ch-allenging the acquisition proceedings in respect of the lands question. The said Writ Petition was contested it the society by filing its detailed objections. During 'V ~.--the pendency of the said Writ Petition series of Writ & 21 illegality committed by the BDA in sanctioning the lay out plan which includes the land in question, the learned Single Judge has rightly dismissed Petition, therefore, there are no'"'grounds.."tlov[interfere with the impugned order passed.V_b$-tithe Judge.
14. There is no that the land stood in the name of of the issue of 4(1) of the Act.
There said P.R.Kiran filed 'challenging the notifications issued under of the Act and the said Writ PetitiAoni'cameV"to..hVe later dismissed as Withdrawn on the memo filed to the effect that the and the society have settled the ~V matter o.ut'of court and a resolution has been passed to lugthat-..effect on 5.12.1996 by the society. However What ' the terms of settlement entered into between the '4 Wparties were not placed on record at that point of time. /"3 24 interest in the land are sought to be acquired bv it. There can be no question of taking 'svmbolical' possession in the sense-___ understood by iudicial decisions under Code of Civil Procedure. Nor -1- possession merelv on paper be enou.qh"._:
the act contemplates has _ condition of vesting of Government is the it of possession of the stifgch possession maybe taikeln' deplendix on the nature of the _a_lanc1f* Sucli_»..Lpossession would have to be"'ta1é:en of the land. 0f."--.':lh_ere"can"§be no hard and i'ast._riiledayting"»do*m'1"what act would be sufficlientl tot '-co:1_st--i'.t'*ute taking of possession of land. not, therefore, be taken 5'«:.as_.:1aying Aidowpgas absolute and violable rule A th:_atVin:erely going on the spot and making a by beat of drum or otherwise wou]dj'.w"be sufficient to constitute taking of possession of land in every case." [Emphasis supplied) 3% therefore, the work order was not issued. In the _mean while the society submitted revised lay out extent of 205 acres 1 gunta, the possession was stated to have been handedjove'rto_ the file of BDA, the Society represelrited would secure the possessiorhjof the*mlands soon. The BDA file eueeeeuehey, the society went on fllay out plans covering notings dated 21.9.2000 the land in question bearing" be-evnlvlreserved for industrial change of land user is permitted, ray out «plan showing the said area for purposewcannot be approved. The BDA file A'-.rloe's as to whether such change of land use has'«. been-«f"'pe1':nitted by the competent authority.
:_."i'J;'eVVertheless the BDA novv appears to have approved a plan submitted by the society including the land T "in question. The file produced by the BDA contains (7! 36 actual possession of the Iand in question taken over by the State Gover:.irneI1t.'_ therejAtVis._n:o'--rieed ' for us to go into the question to.'V_iiz1*iether."--tdhe.VV petitioners have derived "to the agreement entered be't'\§i}e'eri4 and the predecessor in title of otherwise as noticed 'is not what were the terms dbetween the parties under the copy of the alleged agreelrrent before withdrawing the earlier PVeti'ti'on.."'No doubt, the petitioners have now copgvrmoi" the agreement said to have been 1 the parties before withdrawing the ea:"=1ier_"Writ Petition. However the respondent -- society disputed the correctness of the same. Therefore, we do 37% not propose to express any opinion in this behalf. However, having regard to the fact that the records produced by the Government does not possession of the land in question 1'18.ViIlg_.A"11';JE2€".d[t1"*.f§ik<§i«?._T' ~ over in accordance with law, the ~1earf£1edMSiri:gieV'.Ju_dge,_V wt' in our opinion, Was not right in co1i,sid.éfin»§~.,,,tfi.e,. question whether without taidiiag potssessioiiz o:f_:"ti1~e 'iand EDA could approve az-lay ou,t"pian 'i1i,.respect..o;f}the land in question." Singie Judge in our opinion, ought to have records from the Government and;'BDA to '-s,atisfy."'hi.i'nse1f as to whether or not the actualliposdsession of the land had been taken over. As Sirigie Judge did not secure the records, in our opiniori', the impugned order passed without looking 38 into the records on crucial aspect of talU.r1g :'f.ov.er possession, is not in accordance with law. T ~ impugned order of the learned S1n~g.l.e to ll"
be interfered with.
17. In Vi€W of the fact"'3.at the poss'e"ssi'on of the land still remains with the oiwncrs_.':of,llthe'land and since actual possessirnn-- ofigthe been taken over by the is not justified in sanctrioninéptl?-;.;§...1_¢j3rp out"'pl'an_'which included the land in question'!Therefore,,.4thel'lay out plan approved by the inzso far relates to the land in question is bad i11.,therefo_re it is liable to be quashed. It is open to autl_in__ri~t'ies to take possession of the land in the manner known to law and it is only ltliereafter the BDA would be competent to approve the "iayllout plan in respect of the land in question. It is also "open to the petitioners to pursue their remedy at the 39 Government leve}. pursuant to the letter dated 12.7.2002 extracted above. 2 2' lgln the light of the above _ appeais are allowed. The ordermof Judge dated 8.8.200'? passed W.P.No.12053/2003 dismiee-.ir1g ' teed hereby set aside. The Rule made absolute. The by the BDA is quashed in 'sofar in question Viz., Sy.No.. village Bangalore South-.TailuIe:, Baj1ga1o4re.,."measuring 2 acres 20 guntas. Sd/-
ddddd RIDGE Sd/-~ FUDGE