Karnataka High Court
Mr. M. Mahadevaiah vs The State Of Karnataka on 18 April, 2023
Author: Krishna S Dixit
Bench: Krishna S Dixit
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WP No. 46520 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 46520 OF 2016 (LA-BDA)
BETWEEN:
MR. M. MAHADEVAIAH,
S/O SRI MADAIAH,
AGED ABOUT 79 YEARS,
R/AT NO.648, 5TH CROSS,
LOKA NAYAKA NAGAR, METTAGALLI POST,
MYSORE-570 016.
SENIOR CITIZEN BENEFIT NOT CLAIMED.
...PETITIONER
(BY SRI. RAGHAVENDRA KATTIMANI M.,ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ADDITIONAL CHIEF SECRETARY
Digitally GOVERNMENT OF KARNATAKA,
signed by DEPARTMENT OF URBAN DEVELOPMENT,
CHETAN B C
4TH FLOOR, VIKASA SOUDHA,
Location:
HIGH COURT DR.AMBEDKAR ROAD, BENGALURU-560 001.
OF
KARNATAKA 2. THE BANGALORE DEVELOPMENT AUTHORITY
DR.T.CHOWDAIAH ROAD, BENGALURU-560 020.
REPRESENTED BY ITS COMMISSIONER.
3. THE SPECIAL LAND ACQUISITION OFFICER,
BANGALORE DEVELOPMENT AUTHORITY,
DR.T.CHOWDAIAH ROAD, BENGALURU-560 020.
...RESPONDENTS
(BY SRI. SRIDHAR HEGDE., AGA FOR R1;
SRI. M V CHARATI.,ADVOCATE FOR R2 & R3)
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WP No. 46520 of 2016
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARE THAT THE PRELIMINARY NOTIFICATION DATED
15.11.2000 VIDE ANNEX-A FINAL NOTIFICATION DATED
21.08.2001 VIDE ANNEX-B AND ERRATUM DATED 31.10.2001
VIDE ANNEX-C ISSUED BY R-1 IN RESPECT OF THE
PETITIONER'S LAND BEARING SY.NO.16/1, MEASURING 12.26
GUNTAS OF GANAKALLU VILLAGE, KENGERI HOBLI,
BANGALORE SOUTH TALUK AS LAPSED, VITIATED AND NULL
AND VOID IN SO FAR AS PETITIONER'S SCHEDULE PROPERTY
IS CONCERNED AND THE SCHEDULE PROPERTY STANDS
DELETED FROM THE ACQUISITION PROCEEDINGS; AND ETC.,
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner, the owner of subject land in acquisition process is knocking at the doors of Writ Court seeking quashment of Preliminary Notification dated 15.11.2000 issued by the BDA under Section 17(1) at Annexure-A, Final Notification dated 21.08.2001 issued by the State under Section 19(1) Annexure-B, and Erratum dated 31.10.2001 at Annexure-C. He also seeks quashment of Endorsement dated 07.06.2016 (Annexure D) issued by the 3rd Respondent - SLAO. Essentially, petitioner seeks to eschew the subject land from the acquisition process. -3- WP No. 46520 of 2016
2. Learned Counsel for the petitioner vehemently argues that the initiation of acquisition process vide Preliminary Notification dated 15.11.2000, years have rolled and no subsequent steps have been taken and therefore, the same should be treated as having been abandoned or lapsed; the acquisition process needs to be voided since his objections to the acquisition proposal has not been considered at all; petitioner has been continuing in the possession of the land; the SLAO himself has stated that this land having structures is unsuitable for the formation of layout. Petitioner has not been paid compensation. Even otherwise, adjoining lands having been dropped from acquisition, similar benefit be granted to him; lastly, petitioner has given his land to the JSS Trust for establishing a school and for the formation of public roads earlier. Learned counsel appearing for the petitioner draws attention of the Court to Section 24(3) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, specifically submitting that, if no award is made within the -4- WP No. 46520 of 2016 prescribed period for acquisitions, there is automatic lapsing of the same.
3. After Service of Notice, learned AGA appears for the 1st Respondent - State; Respondents Nos. 2 & 3 are represented by their learned Sr. Panel Counsel. Both they make submissions in justification of the impugned notifications/endorsements and the reasons on which they have been structured. Learned Sr. Panel Counsel submits that the petition for quashment is highly belated; possession of the land has already been taken; and compensation has been deposited in the LAC Court; continuation of the petitioner in the possession is nothing but trespass of public property. Case of the petitioner does not fit into the parameters of JUNJAMMA case. There is no need for a roving inquiry into the objections of the land owner when huge lands belonging to many persons have been notified for acquisition.
4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is -5- WP No. 46520 of 2016 inclined to grant indulgence in the matter as under and for the following reasons:
(a) The Preliminary Notification for acquisition was issued on 15.11.2000; Petitioner had filed his Objections to the same on 22.02.2001. He had specifically stated about parts of the land in Sy.No.16/1 of Ganakallu Village having been given for formation of the road and for the establishment of a school; the land is within a radius of 100 meters from the gramathaana and that there are structures in about 9 & a half guntas out of about 30 Guntas of land comprised in the acquisition Notifications;
he had also mentioned about the requirement of retention of this land for the benefit of the family. Paragraph No.7 of Petitioner's Objections to acquisition reads asunder:
"3.1.2000 PÀæªÀÄ ¸ÀASÉå: 9053/99-00 ²æòæòæà ²ªÀgÁwÛ zÉòPÉÃAzÀæ ªÀĺÁ¸Áé«ÄUÀ¼ÀªÀjUÉ CzsÀåPÀëgÀÄ, J.S.S. ªÀĺÁ«zÁå¦ÃoÀ EªÀjUÉ 1-00 JPÀgÉ J®èªÀÇ jf¸ÉÖçõÀ£ï£À°è zÁR¯ÁVgÀÄvÀÛªÉ. G½zÀ d«ÄãÀÄ PÉAUÉÃj GvÀÛgÀºÀ½î ªÀÄÄRågÀ¸ÉÛUÉ. ¸ÀĪÀiÁgÀÄ 600 x 40 Cr, UÁtÂPÀ®Äè UÁæªÀÄPÉÌ ºÉÆÃUÀĪÀ ²æäªÁ¸À¥ÀÄgÀ UÁtÂPÀ®Äè zÁR¯É UÁæªÀÄzÀ ¸ÀĪÀiÁgÀÄ 10 ªÀÄ£É ¤ªÉñÀ£ÀUÀ¼ÀÄ ¸ÀzÀj EzÉà ¸ÀªÉð £ÀªÀÄ.16/1 gÀ°èzÀÄÝ £À£Àß d«ÄãÀ£Àß ZÀPÀÄÌ §A¢AiÉƼÀUÉ EgÀÄvÀÛzÉ. £À£Àß d«ÄãÀÄ ¥ÀAZÁ¬ÄÛ ªÁå¦ÛAiÀÄ CAzÀgÉ UÁæªÀÄoÁtzÀ PÉêÀ® 100 «ÄÃlgï M¼ÀUÉà EgÀÄvÀÛzÉ.-6- WP No. 46520 of 2016
ªÉÄîÌAqÀAvÉ «¯ÉêÁjAiÀiÁV G½zÀ ¸ÀĪÀiÁgÀÄ 30 UÀÄAmÉ d«Ää£À°è ¥Á®Ä ªÀÄA¢ UÀAqÀÄ ªÀÄPÀ̼ÀÄ £Á®ÄÌ ªÀÄA¢."
However, no records have been produced to show that the Final Notification dated 21.08.2001 has been issued after duly considering the said Objections. Thus, there is a first infirmity that goes to the root of the matter since consideration of Objections is not an empty formality vide Apex Court decision in UNION OF INDIA vs. SHIV RAJ AIR 2014 SCC 2242. Added, there is no denial of the fact that the Petitioner has already lost certain land for the formation of public road.
b) Petitioner's contention that all through he has been in the possession of the land is vouched by the findings recorded by a Coordinate Bench of this Court in his earlier W.P.No.32711/2013 (LA-BDA) disposed off on 28.10.2014. At paragraph 6 of the judgment, it is observed as under:
"6... Though the endorsement at present indicates that the possession had been taken and a notification had been issued, the documents relied on by the petitioner and the reference made thereto by the learned counsel for the -7- WP No. 46520 of 2016 petitioner, more particularly the document at Annexure-K would indicate that a note has been put up on 12.09.2005 that the petitioner is in possession of the property except for the extent of 12 guntas which has been utilized by the respondents."
Similarly, the SLAO in her Report dated 19.02.2016 at Annexure-W had said as under:
"F ªÉÄîÌAqÀ J¯Áè CA±ÀUÀ¼À£ÀÄß PÀÆ®APÀĵÀªÁV ¥Àj²Ã°¸À¯ÁV, ªÀiÁ£Àå GZÀÒ £ÁåAiÀiÁ®AiÀĪÀÅ ¤ÃrgÀĪÀ DzÉñÀzÀAvÉ ºÁUÀÆ 1/2 C©üAiÀÄAvÀgÀgÀ ªÀgÀ¢AiÀÄAvÉ CfðzÁgÀgÀÄ PÉÆÃjgÀĪÀ 0-09 UÀÄAmÉ d«Ää£À ¸ÀܼÀ ¥ÀgÀ²Ã°¸À¯ÁV, ¸ÀzÀj d«ÄãÀ£ÀÄß §qÁªÀuÉUÉ G¥ÀAiÉÆÃV¹PÉÆArgÀĪÀÅ¢®è. d«Ää£À ¸ÀÄvÀÛ®Æ PÁA¥Ëqï ¤«Äð¹zÀÄÝ, d«Ää£À°è PÁAQæÃmï PÁ®ªÀiïì, ¸Áå¤ljAiÀÄ JgÀqÀÄ jAUÀÄ UÀÄArUÀ¼ÀÄ ªÀÄvÀÄÛ JgÀqÀÄ ¤Ãj£À vÉÆnÖUÀ¼ÄÀ EgÀÄvÀÛzÉ. ªÀiÁ£Àå GZÀÒ £ÁåAiÀiÁ®AiÀĪÀÅ ¤ÃrgÀĪÀ DzÉñÀzÀAvÉ CfðzÁgÀgÄÀ FUÀ®Æ d«Ää£À C£ÀĨsÀªÀzÀ°è EgÀĪÀ PÁgÀt CfðzÁgÀgÀ ªÀÄ£À« ¸ÀA§AzsÀ PÁ£ÀƤ£ÀAvÉ ¸ÀÆPÀÛ PÀæªÀÄ dgÀÄV¸À§ºÀÄzÁVzÉ."
c) The submission of learned counsel for the Petitioner that Petition land at least to the extent of 9 & a half Guntas is liable to be eschewed from acquisition since the same cannot be put to use for the formation of the Layout stands substantiated by the version of the SLAO of the BDA vide Report dated 22.06.2015 at Annexure-X wherein it is observed as under:
-8-WP No. 46520 of 2016
"...CfðzÁgÀgÀÄ PÉÆÃjgÀĪÀ 0-091/2 UÀÄAmÉ eÁUÀPÌÉ ¸ÀA§A¢ü¹zÀAvÉ, ªÀiÁ£Àå GZÀÒ £ÁåAiÀiÁ®AiÀÄzÀ jmï Cfð ¸ÀASÉå:32711/2013 ¢£ÁAPÀ:28/10/2014gÀ DzÉñÀzÀAvÉ, ¸ÀzÀj 0-091/2 UÀÄAmÉ eÁUÀªÅÀ §qÁªÀuÉ ¤«Äð¸À®Ä AiÉÆÃUÀåªÉà JA§ÄªÀÅzÀgÀ §UÉÎ ¸ÀܼÀ ¥Àj²Ã®£É ªÀiÁr Cgï.¹.¦ PÁ®AUÀ¼ÀÄ (°Al¯ï ªÀÄlÖPÌÉ ) ºÁUÀÆ ¤Ãj£À vÉÆnÖUÀ¼ÀÄ ªÀÄvÀÄÛ ¸ÀÄvÀÛ®Æ PÁA¥ËAqï UÉÆÃqɽgÀÄvÉÛªÉ. ¸ÀzÀj d«ÄãÀÄ §qÁªÀuÉ £ÀPÉëAiÀÄ°è SÁ¸ÀV ¸ÀévÀÄÛ JAzÀÄ UÀÄgÀÄwÛ¹gÀÄvÁÛgÉ. ºÁUÀÆ ¸ÀܼÀªÀÅ ¨sÀƪÀiÁ°ÃPÀgÀ ¸Áé¢üãÀzÀ°ègÀÄvÀÛzÉ. ¸ÀzÀj d«ÄäUÉ ºÉÆA¢PÉÆAqÀAwgÀĪÀ EzÉà ¸ÀªÉð £ÀA.16/1 gÀ°ègÀĪÀ EvÀgÉ ¨sÁUÀzÀ d«ÄãÀÄUÀ¼ÀÄ ¨sÆ À ¸Áé¢üãÀ¢AzÀ PÉÊ©qÀ¯ÁVgÀÄvÀÛzÉ. F J¯Áè PÁgÀtUÀ½AzÀ ºÁUÀÆ CfðzÁgÀgÀÄ PÉÆÃjgÀĪÀ ¸ÀzÀj 0-091/2 UÀÄAmÉ ªÉÄîÌAqÀ PÉÊ©qÀ¯ÁzÀ d«ÄãÀÄUÀ½UÉ ºÉÆA¢PÉÆAqÀAwgÀĪÀÅzÀjAzÀ, §qÁªÀuÉ gÀa¸À®Ä G¥ÀAiÀÄPÀÛªÁVgÀĪÀÅ¢®è JAzÀÄ ªÀgÀzÉE ¤ÃrgÀÄvÁÛgÉ."
It is ununderstandable as to why at least, this portion of the acquired land cannot be saved in favour of the Petitioner when the BDA Authorities have specifically stated that the possession of land is with the Petitioner all through; the structures do exist in the same land; this piece of the land cannot be put to use of formation of the Layout; the adjoining land has been already denotified.
d) The vehement contention of learned Panel Counsel for the BDA that challenge to acquisition is highly belated cannot be countenanced and reasons are not far to seek: -9- WP No. 46520 of 2016
firstly, Petitioner has been agitating against the acquisition since a decade or so. He had filed W.P.No.32711/2013 and had obtained some reprieve at the hands of the Coordinate Bench which mentioned about his continuing in the possession of the land. Secondly, the Bench had directed the consideration of Petitioner's Representation for eschewing the land from acquisition. The SLAO of the BDA has submitted the Final Report on 22.06.2015 specifically recommending for the dropping of Petition land from acquisition. The Report reads as under:
"FUÁUÀ¯Éà ¨sÀƸÁé¢üãÀ ¥ÀæQæAiÉÄAiÀÄÆ ¸ÀA¥ÀÆtðªÁV ªÀÄÄPÁÛAiÀÄUÉÆArgÀĪÀÅzÀjAzÀ ºÁUÀÆ CfðzÁgÀgÀ d«ÄãÀ£ÀÄß G¥ÀAiÉÆÃV¸À¢gÀ®Ä C©üAiÀÄAvÀgÀgÀ ±ÁSÉAiÀÄÆ PÁgÀtgÁVgÀĪÀÅzÀjAzÀ, PÉêÀ® C©üAiÀÄAvÀgÀgÀ ªÀgÀ¢AiÀÄ DzsÁgÀzÀ ªÉÄÃ¯É CfðzÁgÀjUÉ ¸ÉÃjgÀĪÀ UÁtPÀ®Äè UÁæªÀÄzÀ ¸ÀªÉð £ÀA.16/1gÀ°ègÄÀ ªÀ 0-091/2 UÀÄAmÉ d«ÄãÀ£ÄÀ ß ¨sÀƸÁé¢üãÀ ¥ÀæQæ¬ÄAzÀ PÉÊ©qÀ®Ä PÀæªÀĪÀ»¸À§ºÀÄzÁVzÉ."
Learned counsel for the Petitioner is right in submitting that when the possession of the acquired land continues with the owner uninterruptedly, the vesting will not take place and if the vesting does not takes place for decades, the cause of action for seeking a declaration for abandonment of acquisition becomes stronger as the days
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WP No. 46520 of 2016pass. Thus, there is no delay & latches that would disentitle the petitioner for the relief as sought for.
e) The contention of the learned Panel Counsel for the BDA that a person continuing in the occupation of the acquired land is only a trespasser cannot be accepted for more than one reason: Firstly, the possession has not been taken in respect of 9 & a half Guntas out of about 30 Guntas of acquired land since structures do exist therein; it is not the case of BDA that the Petitioner unlawfully resisted assumption of possession; the SLAO in her report has clearly stated that the BDA officials have not taken the possession of 9.1/2 Guntas of land because of existing structures; secondly, there is no dispute that the Petitioner has not received the compensation; in fact, the Commissioner of BDA vide order dated 01.02.2002 had directed his subordinates to pay the compensation and despite that it has not been paid; these factors show that there is no vesting of the land in the State and thus, the acquisition process to this extent remains unaccomplished
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WP No. 46520 of 2016as yet. If that be so, there is absolutely no reason for not granting relief to the Petitioner.
f) Lastly, learned counsel for the Petitioner is more than justified in contending that justice of the case warrants that the small extent of 9 & half Guntas of land from out of the acquired land in the fitness of things should be freed from acquisition process subject to Petitioner paying the Betterment Charges or such other levy legally required. He has filed a Memo dated 18.04.2023 which reads as under:
"I the undersigned counsel for the Petitioner submits that, the Petitioner herein prays that his case may be considered to pay the betterment charges for his land of 9.5 Guntas in Sy.No.16/1 out of 21.50 Guntas to the BDA. Further the counsel, undertake to file the affidavit of the Petitioner in view of the undertaking above within two weeks in view of the above submission, this Hon'ble Court may be pleased to take up this Memo on record in the interest of justice and equity."
In the above circumstances, this Writ Petition succeeds in part; a Writ of Certiorari issues quashing the acquisition to the extent of 9 & a half Guntas of
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WP No. 46520 of 2016Petitioner's land in Sy.No.16/1 of Ganakallu Village, Kengeri Hobli, Bangalore South Taluka (this portion which is to be compounded shall be carved out by the BDA Officials from out of the scheduled property). Challenge to the acquisition of rest of the land is negatived.
Petitioner shall pay the Betterment Charges or such other levies within four weeks from the date a Demand is raised by the BDA or such other competent Authorities, failing which, the acquisition in respect of entire land shall fructify depriving the Petitioner of any extent of the subject land.
Now, no costs.
Sd/-
JUDGE Bsv