Karnataka High Court
Dr. H. M. Krishna Reddy vs The Bengaluru Development Authority on 30 September, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.45882 OF 2018 (LA-BDA)
BETWEEN:
DR. H M KRISHNA REDDY
AGED 70 YEARS
S/O LATE MUNI REDDY
R/O NO.169, 18TH CROSS
LAKKASANDRA LAYOUT
BENGALURU-560 030.
...PETITIONER
(BY SRI R.S. HEGDE, ADVOCATE)
AND:
1. THE BENGALURU DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD
KUMARA PARK WEST
BENGALURU-560 020
REPRESENTED BY ITS COMMISSIONER.
2. THE STATE OF KARNATAKA
REPRESENTED BY PRINCIPAL SECRETARY
URBAN DEVELOPMENT DEPARTMENT
M S BUILDINGS,
DR. AMBEDKAR ROAD
BENGALURU-560 001.
3. SRI K THYAGARAJ
AGED 45 YEARS
S/O LATE KRISHNAPPA
R/AT KADABAGERE VILLAGE
MAGADI ROAD
BENGALURU SOUTH TALUK
2
BENGALURU RURAL DISTRICT
BENGALURU-562 130.
....RESPONDENTS
(BY SRI K.R. NITYANANDA, AGA FOR R2;
SRI UNNIKRISHNAN M, FOR R1;
SRI D.N. NANJUNDA REDDY, SR. ADVOCATE
FOR SRI BADRINATH R, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ABSOLUTE SALE DEED DATED 10.09.2018 REGISTERED AS
DOCUMENT ON 12.09.2018 IN THE OFFICE OF THE ADDITIONAL SUB-
REGISTRAR BANGALORE URBAN DISTRICT, SAID TO BE EXECUTED BY
THE DEPUTY SECRETARY OF R1 VIDE ANNEXURE-A PURPORTING TO
BE BASED ON ALLOTMENT LETTER DATED 07.09.2018 SAID TO BE
ISSUED BY DEPUTY SECRETARY OF R1; AND ETC.
IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, petitioner has challenged the legality of the Notifications dated 15th December, 1984 and 28th November, 1986 (Annexure-M and N) respectively, inter alia seeking cancellation of the sale deed dated 10th September, 2018 and further, seeking appropriate direction to the respondents with regard to illegal demolition of the existing building on 'A' schedule property by the respondent No.1-BDA and such other reliefs.
3
2. The factual matrix of the case is that the petitioner claims to be owner of the residential property bearing No.76/1, House No.15, situate at Agara village, Bengaluru South Taluk, presently situate within the limits of Agara Ward of Bruhat Bengaluru Manahagara Palike. The grievance of the petitioner as pleaded in the writ petition is that the respondent No.1- Bangalore Development Authority (for brevity hereinafter referred to as "BDA"), illegally renamed the petitioners 'A' schedule property by assigning new number as BDA Site No.964/A and allotted the same in favour of respondent No.3 herein by letter of allotment dated 07th August, 2018 and the said allotment is contrary to the Bangalore Development Authority (Allotment of Sites Rules), 1984 (for brevity hereinafter referred to as "BDA Rules"). It is further stated in the petition that the petitioner has been illegally dispossessed by demolishing the existing building and further, the impugned notifications at Annexure-M and N are contrary to Section 27 of the Bangalore Development Authority Act, 1976 (for brevity hereinafter referred to as "BDA Act') and therefore, the petitioner has presented this petition.
4
3. On service of notice, respondent No.1-BDA filed detailed statement of objection contending that the BDA has framed development scheme for formation of Layout called as "Between Hosur Road and Sarjapur Road (BHSR Layout)". It is further averred that the writ petition deserves to be dismissed on the ground of delay and laches, so also, on the ground that, petitioner being a subsequent purchaser, cannot maintain petition challenging the impugned notifications. It is further contended that the respondent-authorities have taken possession of the land in question, consequently notified under Section 16(2) of the Land Acquisition Act, 1894 and therefore, sought for dismissal of the petition.
4. Respondent No.3 has filed detailed statement of objection, raising preliminary objection with regard to the maintainability of the petition on the ground that this Court has no jurisdiction to cancel the sale deed dated 10th September, 2018 (Annexure-A) under Articles 226 and 227 of the Constitution of India and further alleged that the petitioner, 5 being a subsequent purchaser of the land in question, the writ petition deserves to be dismissed in limine.
5. The petitioner has filed rejoinder and submitted that one Pasala Reddy-notified khatedar and his legal representatives, as well as the purchasers of the Revenue Sites, have formed a Private Layout and it is further stated that Smt. R. Ramalakshmamma is not the owner of the property is question and therefore urged that she is in no way concerned with claiming compensation on behalf of the petitioner herein. It is also contended that the procedure adopted by the respondent No.1-BDA while taking possession is contrary to law and accordingly, sought for allowing the petition.
6. I have heard Sri R.S. Hegde, learned counsel for the petitioner; Sri K.R. Unnikrishnan M, learned counsel appearing for the respondent No.1-BDA; Sri D.N. Najunda Reddy, learned Senior Counsel for Sri Badarinath, counsel appearing for respondents 2 and 3; and Sri K.R. Nityananda, learned Additional Government Advocate, appearing for the respondent- State.
6
7. Sri R.S. Hegde, learned counsel appearing for the petitioners raised the following arguments:
7.1. Firstly, the procedure adopted by the respondent-
Authorities while taking possession of the schedule land is contrary to law. In this regard, referring to Annexures-C to E, learned Counsel contended that the possession of the property was with the petitioner herein till the illegal demolition made by the respondent No.1-BDA. He also referred to the proceedings in Original Suit No.7288 of 2003, whereby the trial Court, by judgment and decree dated 17th April, 1995, decreed the suit of the petitioner herein and directed the defendants therein from interfering with the suit schedule property. Referring to certain photographs at Annexure-G series, learned counsel for the petitioner submitted that possession of the property continues to be with the petitioner pursuant to the sale deed dated 06th October, 1990 (Annexure-B) and further emphasised that the mode of taking possession by the respondent No.1-BDA is contrary to law. Referring to documents produced at Annexure- 'O' series, he submitted that the subject land has to be restored 7 back to the petitioner in terms of the law declared by Hon'ble Apex Court in the case of BALVANT NARAYANA BAGADE v. M.D. BHAGAWAT reported in (1976)1 SCC 700. He also refers to the judgment of this Court in Writ Petition No.60065 of 2016 decided on 06th February, 2020 and contended that the respondent- authorities have not followed the procedure contemplated under the Act as well as the judgment referred to above and accordingly, he sought for interference of this Court.
7.2. Secondly, Sri R.S. Hegde, learned Counsel for the petitioner contended that the demolition of the building constructed by the petitioner was illegal and contrary to law. It is his submission that, originally the land belonging to one Sri P. Muni Reddy who sold the land in question in favour of Sri Asadulla Shariff by way of registered Sale Deed dated 10th August, 1989 and the said Asadulla Shariff has sold the schedule property in favour of the petitioner by registered Sale Deed dated 06th October, 1990. He further pleaded that the trial Court has granted perpetual injunction in favour of the petitioner in Original Suit No.7288 of 2019 and the respondent No.1-BDA, 8 without following the due process of law, has demolished the building constructed in the subject land and therefore, the action of the respondent No.1-BDA has to be condemned and as such, he sought that appropriate relief be made to the petitioner herein. Elaborating the inaction on the part of the respondent No.1-BDA, Sri R.S. Hegde, submitted that the impugned Notifications passed by the respondent-authorities proposing to acquire the land belonging to the petitioner is contrary to Section 27 of the BDA Act, since the respondent-authorities have not implemented the scheme in true sense of Section 27 of BDA Act and in this regard, he referred to the Division Bench judgment of this Court in the case of SMT. NAGU BAI v. STATE OF KARNATAKA reported in ILR 2001 KAR. 1169 and in the case of DR. A. PARTHASARATHY AND OTHERS v. STATE OF KARNATAKA AND OTHES reported in ILR 2017 KAR. 3489. Referring to aforementioned judgments, learned counsel argued that the respondent No.1-BDA has abandoned the land in question and scheme has to be lapsed and therefore, sought for restoration of land in favour of the petitioner.
9
7.3. The third limb of the argument advanced by the learned counsel appearing for the petitioner is that the allotment of site made in favour of the third respondent is incorrect and the petitioner is entitled for the benefit of Section 38-D of the BDA Act. He also referred to Rule 11-A(1) of BDA Rules and argued that the respondent No.3 is not entitled for an alternative site in lieu of allotment of G-category site under the aforementioned Rules and accordingly, sought for cancellation of the allotment made in favour of the respondent No.3 by allowing the writ petition.
8. Per contra, Sri D.N. Nanjunda Reddy, learned Senior Counsel appearing for respondent No.3 argued that, the petitioner being a subsequent purchaser, in view of the law declared by the Hon'ble Apex Court in the case of V. CHANDRASEKARAN AND ANOTHER v. ADMINISTRATIVE OFFICER AND OTHERS reported in (2012)12 SCC 133, the writ petition is not maintainable. Emphasising on the said aspect, learned Senior Counsel contended that the petitioner herein is disentitled from urging any ground challenging the impugned Notification 10 including the mode of taking possession of the land in question since the respondent No.1-BDA has issued the Notification under Section 16(2) of the Land Acquisition Act. Nextly, Sri D.N. Nanjunda Reddy, learned Senior Counsel, urged that the impugned Notifications are issued with reference to original khatedars and the petitioner has purchased the property from one Sri Asadulla Shariff, who in turn purchased the land from the original khatedar-Sri P. Muni Reddy and therefore, prayers sought for in the writ petition, establish the indirect way of challenging the acquisition proceedings which requires to be dismissed with exemplary cost. Thirdly, learned Senior Counsel Sri D.N. Nanjunda Reddy, argued that this Court has no power to nullify the sale deed dated 10th September, 2018 (Annexure-A), as, it is only the Civil Court which is having jurisdiction to cancel the sale deed. In this regard, learned Senior Counsel referred to the judgment of the Hon'ble Apex Court in the case of SATYAPAL ANAND v. STATE OF MADHYA PRADESH AND OHTERS reported in (2016)10 SCC 767.
11
8.1. Further, to counter the submission of the learned counsel appearing for the petitioner relating to lapse of scheme is concerned, Sri D.N. Nanjunda Reddy, learned Senior Counsel, referred to the Division Bench judgment of this Court in KRISHNAMURTHY v. BANGALORE DEVELOPMENT AUTHORITY reported in ILR 1996 KAR. 1258 and argued that Notification pertaining to the acquisition made with regard to the very scheme of HSR Layout was affirmed by the Division Bench of this Court in the case of L. RAMAREDDY v. STATE OF KARNATAKA, URBAN DEVELOPMENT DEPARTMENT made in Writ Appeal No.1415 of 2018 decided on 01st December, 2020 and same was confirmed by the Hon'ble Apex Court in the case of BANGALORE DEVELOPMENT AUTHOIRTY v. STATE OF KARNATANA AND OTHERS made in Civil Appeals No.7661-7663 of 2018 decided on 20th January, 2022. Referring to the judgment of the Hon'ble Apex Court referred to above, learned Senior Counsel argued that Section 24(2) of the Right to Fair Compensation in Land Acquisition Rehabilitation and Resettlement Act, 2013 (for brevity hereinafter referred to as "2013 Act") is not applicable to the BDA Act and therefore, submitted that since the impugned 12 Notifications are confirmed by the Hon'ble Apex Court, the submission of the learned counsel appearing for the petitioner cannot be accepted. With regard to the submission of learned counsel for the petitioner on Section 38-D of BDA Act and Rule 11-A(1) of the BDA Rules, Sri D.N. Nanjunda Reddy argued that the respondent No.3 herein had appeared before the Committee constituted by this Court to inquire into the G-category sites allotted by the Bangalore Development Authority and same has been confirmed by the said Committee as per Annexure-R14 and thereafter, since the said site was not suitable for the petitioner, the respondent No.1-BDA, at its wisdom, allotted the site in question to the respondent No.3 which is in accordance with law and the petitioner herein has no locus standi to challenge the same in the present writ petition.
9. Sri Unnikrishnan M, learned counsel appearing for respondent No.1-BDA sought to justify the action of respondent- BDA with regard to taking possession of the land in question and he also referred to the Notification issued under Section 16(2) of the Land Acquisition Act and argued that since the petitioner has 13 not challenged the said Notification in this petition, the submission of the petitioner with regard to taking possession of land cannot be accepted. In respect of the arguments advanced by the learned counsel for the petitioner with regard to other issues, Sri Unnikrishnan M., adopted the arguments advanced by learned Senior Counsel Sri D.N. Nanjunda Reddy. He also referred to the proceedings in LAC No.22/86-87 (Annexure-R1) and submitted that legal representatives of the original owner as a khatedar of the land in question, has made an application under Section 18 of the Land Acquisition Act and therefore, the petition itself is not maintainable.
10. The learned AGA supported the contention of the learned Senior Counsel and the learned counsel for the respondent No.1-BDA.
11. In the light of the submission made by the learned counsel appearing for the parties, the following questions arise for consideration in this writ petition:
14
1. Whether the writ petition is maintainable under Article 226 of the Constitution of India, challenging the acquisition proceedings?
2. Whether the petitioner is entitled for damages in view of demolition of the building in question?
12. A careful examination of writ paper would indicate that the respondent-Government has issued Notification dated 15th December, 1984 under Section 17(1) of BDA Act, proposing to acquire various lands to an extent of 1664.21 acres for the purpose of formation of BHSR Layout in Bengaluru, followed by issuance of Final Notification dated 28th November, 1986 under Section 19 of the BDA Act. As rightly contended by learned Senior Counsel Sri D.N. Nanjunda Reddy, the very same Notification was tested by the Division Bench of this Court in Writ Appeal No.1415 of 2018 decided on 01st December, 2020. The Division Bench of this Court, after elaborately considering the provision with regard to the challenge made to the notifications therein, which are impugned in the present petition, affirmed the acquisition proceedings and same was confirmed by the Hon'ble 15 Supreme Court in the Civil Appeals No.7661-7663 of 2018 (supra) and therefore, as the acquisition proceedings has reached finality in terms of the confirmation made by the Hon'ble Apex Court, I do not find any acceptable ground to interfere with the arguments advanced by Sri R.S. Hegde in the present writ petition.
13. It is to be noted that the petitioner herein is admittedly, not a original khatedar and one Sri P. Muni Reddy is the owner of the property in question at the time of issuing impugned notifications, and he sold the property in favour of Sri Asadulla Shariff as per registered Sale Deed dated 10th August, 1989 and thereafter, the petitioner herein has purchased the subject land by way of registered Sale Deed dated 06th October, 1990. At this juncture, it is pertinent to refer to the dictum of the Hon'ble Supreme Court in the case of V. CHANDRASEKARAN (supra), wherein the observation made at paragraph 16 to 18 reads thus:
"16. Similarly, in U.P. Jal Nigam v. M/s. Kalra Properties Pvt. Ltd., AIR 1996 SC 1170, this Court held 16 that, purchase of land after publication of a Section 4 notification in relation to such land, is void against the State and at the most, the purchaser may be a person- interested in compensation, since he steps into the shoes of the erstwhile owner and may therefore, merely claim compensation. (See also: Star Wire (India) Ltd. v. State of Haryana & Ors. (1996) 11 SCC 698).
17. In Ajay Kishan Singhal v. Union of India, AIR 1996 SC 2677; Mahavir & Anr. V. Rural Institute, Amravati & Anr.., (1995) 5 SCC 335; Gian Chand v. Gopala & Ors.,., (1995) 2 SCC 528; and Meera Sahni v. Lieutenant Governor of Delhi & Ors., (2008) 9 SCC 177, this Court categorically held that, a person who purchases land after the publication of a Section 4 notification with respect to it, is not entitled to challenge the proceedings for the reason, that his title is void and he can at best claim compensation on the basis of vendor's title. In view of this, the sale of land after issuance of a Section 4 notification is void and the purchaser cannot challenge the acquisition proceedings. (See also: Tika Ram v. State of U.P., (2009) 10 SCC 689).
18. In view of the above, the law on the issue can be summarized to the effect that a person who purchases land subsequent to the issuance of a Section 4 notification with respect to it, is not competent to challenge the validity of the acquisition proceedings on any ground whatsoever, for the reason that the sale deed 17 executed in his favour does not confer upon him, any title and at the most he can claim compensation on the basis of his vendor's title."
14. The aforementioned dictum was considered by the Hon'ble Supreme Court in the case of SHIV KUMAR AND ANOTHER v. UNION OF INDIA AND OTHERS reported in (2019)10 SCC 229. In the said judgment, at paragraphs 13 and 24, the Hon'ble Supreme Court observed thus:
"13. The definition of 'landowner' is in section 3(r), the same is extracted hereunder:
"3. Definition.-In this Act, unless the context otherwise requires,-- .....
(r) "landowner" includes any person,-- (i) whose name is recorded as the owner of the land or building or part thereof, in the records of the authority concerned; or
(ii) any person who is granted forest rights under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007) or under any other law for the time being in force; or
(iii) who is entitled to be granted Patta rights on the land under any law of the State including 18 assigned lands; or (iv) any person who has been declared as such by an order of the court or Authority;" Landowner is a person who is recoded as the owner of land or building. The record of date of issuance of preliminary notification under section 11 is relevant. A purchaser after section 11 cannot be said to be a landowner within the purview of section 3(r).
14 to 23 xxx xxx xxx
24. The intendment of Act of 2013 is to benefit farmers etc. Subsequent purchasers cannot be said to be landowners entitled to restoration of land and cannot be termed to be affected persons within the provisions of Act of 2013. It is not open to them to claim that the proceedings have lapsed under Section 24(2)."
15. Following the aforementioned judgments of the Hon'ble Apex Court, I find force in the submission made by the learned Senior Counsel for respondents and accordingly writ petition is not maintainable as to challenge made to the acquisition proceedings.
16. As regards the arguments advanced by the learned counsel appearing for the petitioner with regard to taking possession of the land in question, it is not in dispute that the 19 respondent No.1-BDA has drawn mahazar and pursuant to the same, the respondent-authorities have issued Notification dated 13th October, 1998 under Section 16(2) of the Land Acquisition Act and therefore, judgments referred to by the learned counsel for the petitioner cannot be accepted on the ground that the said Notification was issued in 13th October, 1998 and the writ petition is filed in the year 2018 and hence the writ petition deserves to be dismissed on the ground of delay and laches. In this regard, the law declared by the Hon'ble Apex Court in the case of BANDA DEVELOPMENT AUTHORITY, BANDA v. MOTI LAL AGARWAL AND OTHERS, reported in (2011)5 SCC 394 wherein at paragraphs 15 to 27, the Hon'ble Supreme Court observed thus:
"15. The above extracted portions of the plaint unmistakably show that respondent No.1 had no complaint against the acquisition of land or taking of possession by the State Government and delivery thereof to the BDA and the only prayer made by him was that the defendants be directed to undertake fresh acquisition proceedings after sub-dividing plot No. 795 so that he may get his share of compensation. He filed writ petition questioning the acquisition proceedings after almost 9 20 years of publication of the declaration issued under Section 6(1) and about six years of the pronouncement of award by the Special Land Acquisition Officer. During this interregnum, the BDA took possession of the acquired land after depositing 80% of the compensation in terms of Section 17(3A), prepared the layout, developed the acquired land, carved out plots, constructed flats for economically weaker sections of the society, invited applications and allotted plots and flats to the eligible persons belonging to economically weaker sections as also LIG, MIG and HIG categories. Unfortunately, the High Court ignored all this and allowed the writ petition on the specious ground that the acquired land did not vest in the State Government because physical possession of the land belonging to respondent No.1 was not taken till 31.7.2002 and the award was not passed within two years as per the mandate of Section 11A.
16. In our view, even if the objection of delay and laches had not been raised in the affidavits filed on behalf of the BDA and the State Government, the High Court was duty bound to take cognizance of the long time gap of 9 years between the issue of declaration under Section 6(1) and filing of the writ petition and declined relief to respondent No.1 on the ground that he was guilty of laches because the acquired land had been utilized for implementing the residential scheme and third party rights had been created. The unexplained delay of about 21 six years between the passing of award and filing of writ petition was also sufficient for refusing to entertain the prayer made in the writ petition.
17. It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self imposed restraint evolved by the superior courts is that the High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallized rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the petitioner on merits.
18. In State of Madhya Pradesh v. Bhailal Bhai AIR 1964 SC 1006, the Constitution Bench considered the effect of delay in filing writ petition under Article 226 of the Constitution and held (paras 17 and 21):
"17....It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it........... It is not easy nor is it desirable to lay down any Rule for universal application. It may however be stated as a general Rule that if there has been unreasonable delay the 22 court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus.
21. Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable."
19. In matters involving challenge to the acquisition of land for public purpose, this Court has consistently held that delay in filing the writ petition should be viewed seriously and relief denied to the petitioner if he fails to offer plausible explanation for the delay. The Court has also held that the delay of even few years would be fatal to the cause of the petitioner, if the acquired land has been partly or wholly utilised for the public purpose.
20. In Ajodhya Bhagat v. State of Bihar (1974) 2 SCC 501, this Court approved dismissal by the High Court of the writ petition filed by the appellant for quashing the acquisition of his land and observed:
"23. The High Court held that the appellants were guilty of delay and laches. The High Court 23 relied on two important facts. First, that there was delivery of possession. The appellants alleged that it was a paper transaction. The High Court rightly rejected that contention. Secondly, the High Court said that the Trust invested several lakhs of rupees for the construction of roads and material for development purposes. The appellants were in full knowledge of the same. The appellants did not take any steps. The High Court rightly said that to allow this type of challenge to an acquisition of large block of land piecemeal by the owners of some of the plots in succession would not be proper. If this type of challenge is encouraged the various owners of small plots will come up with writ petitions and hold up the acquisition proceedings for more than a generation. The High Court rightly exercised discretion against the appellants. We do not see any reason to take a contrary view to the discretion exercised by the High Court."
21. In State of Rajasthan v. D.R. Laxmi (1996) 6 SCC 445, this Court referred to Administrative Law H.W.R. Wade (7th Ed.) at pages 342-43 and observed:
"10.The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances."24
22. In Girdharan Prasad Missir v. State of Bihar (1980) 2 SCC 83, the delay of 17 months was considered as a good ground for declining relief to the petitioner. In Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. (1996) 11 SCC 501, this Court held:
"9....It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."
23. In Urban Improvement Trust, Udaipur v. Bheru Lal (2002) 7 SCC 712, this Court reversed the order of the Rajasthan High Court and held that the writ petition filed for quashing of acquisition of land for a residential scheme framed by the appellant-Urban Improvement Trust was liable to be dismissed on the ground that the same was filed after two years.
25
24. In Ganpatibai v. State of M.P (2006) 7 SCC 508, the delay of 5 years was considered unreasonable and the order passed by the High Court refusing to entertain the writ petition was confirmed. In that case also the petitioner had initially filed suit challenging the acquisition of land. The suit was dismissed in 2001. Thereafter, the writ petition was filed. This Court referred to an earlier judgment in State of Bihar v. Dhirendra Kumar (1995)4 SCC 229 and observed:
"9. In State of Bihar v. Dhirendra Kumar this Court had observed that civil suit was not maintainable and the remedy to question notification under Section 4 and the declaration under Section 6 of the Act was by filing a writ petition. Even thereafter the appellant, as noted above, pursued the suit in the civil court. The stand that five years after the filing of the suit, the decision was rendered does not in any way help the appellant. Even after the decision of this Court, the appellant continued to prosecute the suit till 2001, when the decision of this Court in 1995 had held that suit was not maintainable."
25. In Sawaran Lata v. State of Harayana (2010) 4 SCC 532, the dismissal of writ petition filed after seven years of the publication of declaration and five years of the award passed by the Collector was upheld by the Court and it was observed:
"11. In the instant case, it is not the case of the petitioners that they had not been aware of the acquisition proceedings as the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration 26 under Section 6 of the 1894 Act had been published in the newspapers having no wide circulation. Even if the submission made by the petitioners is accepted, it cannot be presumed that they could not be aware of the acquisition proceedings for the reason that a very huge chunk of land belonging to a large number of tenure- holders had been notified for acquisition. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that the petitioners could not have knowledge of the acquisition proceedings."
26. In the instance case, the acquired land was utilized for implementing Tulsi Nagar Residential Scheme inasmuch as after carrying out necessary development i.e. construction of roads, laying electricity, water and sewer lines etc. the BDA carved out plots, constructed flats for economically weaker sections and lower income group, invited applications for allotment of the plots and flats from general as well as reserved categories and allotted the same to eligible persons. In the process, the BDA not only incurred huge expenditure but also created third party rights. In this scenario, the delay of nine years from the date of publication of the declaration issued under Section 6(1) and almost six years from the date of passing of award should have been treated by the High Court as more than sufficient for denying equitable relief to respondent No.1.
27. The two judgments relied upon by the learned counsel for respondent No.1 are not helpful to the cause of his client. In Vyalikaval House Building Co-op. Society v. V. Chandrappa (2007) 9 SCC 304, this Court held that 27 where the acquisition was found to be vitiated by fraud and mala fide, the delay in filing the writ petition cannot be made a ground for denying relief to the affected person. In Babu Ram v. State of Haryana (supra), this Court held that the appellant cannot be denied relief merely because there was some delay in filing the writ petition. The facts of that case were that 34 kanals 2 marlas of land situated at Jind (Haryana) was acquired by the State Government under Section 4 read with Section 17(2)(c) and 17(4) for construction of sewage treatment plant. Notification under Section 4 was issued on 23.11.2005 and declaration under Section 6 was issued on 2.1.2006. Mitaso Educational Society, Narwana, filed suit for injuncting the State from constructing sewage treatment plant in front of the school. On 15.2.2006, the trial Court passed an order of injunction. In another suit filed by one Jagroop similar order was passed by the trial Court. After some time, the appellant filed writ petition under Article 226 of the Constitution. Before this Court it was argued that relief should be denied to the appellant because there was delay in filing the writ petition. Rejecting this argument, the Court observed:
"32.Since Section 5-A of the LA Act had been dispensed with, the stage under Section 9 was arrived at within six months from the date of the notice issued under Sections 4 and 17(2)(c) of the LA Act. While such notice was issued on 23-11- 2005, the award under Section 11 was made on 23-5-2006. During this period, the appellants filed a suit and thereafter, withdrew the same and filed a writ petition in an attempt to protect their 28 constitutional right to the property. It cannot, therefore, be said that there was either any negligence or lapse or delay on the part of the appellants.""
17. Following the judgment referred to above, as the petitioner herein being a subsequent purchaser and not having challenged the Notification under Section 16(2) of the LA Act, so also, in view of delay and laches in approaching this Court, the arguments advanced by the learned counsel appearing for the petitioner cannot be accepted.
18. In respect of the arguments advanced by the learned counsel appearing for the petitioner that the respondent No.1- BDA has abandoned the scheme in respect of the subject land in question, the Division Bench of this Court in the case of KRISHNAMURTHY (supra), at paragraphs 4 and 5 of the judgment, has observed thus:
"4. On the scope of Section 27 BDA Act, a Division Bench of this Court has considered the same and explained to the effect that for the scheme to lapse under Section 27 , there must be dereliction of duty or failure on the part of the authority to execute the scheme specifically within 5 years from the date of publication in 29 the official Gazette and a declaration under Section 19(1) of the Act. The two conditions to be fulfilled to attract the provisions of this Section are, there must be failure to execute the scheme i.e., there must be dereliction of statutory duties without justification and not a mere delay in execution of the scheme. Secondly, substantial execution in the context depends on the magnitude of the scheme and the nature of the work to be executed. Though burden is upon the BDA to furnish material to the Court to show that there is substantial execution on the matter, it is for the appellant to place necessary material before the Court to show that there has been dereliction of statutory duties and not mere delay in implementing the scheme. No such foundation has been laid out on that aspect except to point out there is delay on the part of the BDA.
5. More over, that period of 5 years lapsed in the year 1985. As to why the petitioner-appellant kept quiet for 7 years is un-understandable. However, the learned Counsel for the appellant sought to urge that there being no immediate threat of dispossession of the land, he did not approach this Court. That explanation will not carry the appellant far because there was acquisition of the land and steps were being taken in that regard. Appellant cannot merely state that the acquisition Notification issued seeking to acquire the land in question can be wished away by urging that by lapse of time it will disappear while he should have attacked the same within 30 a reasonable time after the lapse of 5 years. We do not think 7 years delay in that regard would be appropriate or reasonable. Therefore, the view taken by leaned Single Judge in our opinion, is perfectly justified. Therefore, this Appeal could be dismissed on laches alone. Apart from that, we have pointed out that there is no material forthcoming in this case to show that there is dereliction of duty on the part of the BDA in not implementing the scheme to attract the provisions of Section 27 of the Act. The next ground urged on behalf of the appellant that Section 11A of the Land Acquisition Act is applicable to the facts of the case is not at all tenable in view of the Decision of this Court in WA 321-322/ 1989 disposed of on 6.10.1989, G. Narayanaswamy Reddy v. State of Karnataka and Ors. wherein it was held that Section 36 does not enable to hold that Section 11A of the Land Acquisition Act which was introduced into that Act in 1984 would govern the acquisition under the BDA Act. Identical view has been taken by the Supreme Court in STATE OF MAHARASHTRA AND ANR. v. SANT JOGINDER SINGH KISHAN SINGH AND ORS., AIR 1995 SC 2188. It is stated therein that the plea that since the award has not been made within 2 years from the date of publication under the Maharashtra Act under Section 126(2) thereof by operation of Section 11A of the Central Act, the Notification published under Section 125 of the Act shall be deemed to have been lapsed and the authorities are devoid of jurisdiction to proceed further is not tenable. The rationale adopted by Their Lordships is that wherever 31 the Legislature intended to apply specific procedure or the fetters in exercising the power under the Central Act, it did no specifically. After the Central Act 68/1984 came into force no steps had been taken by the State Legislature to amend the Act introducing or incorporating Section 11A of the Central Act as part of the Act. Since the Legislature has incorporated specific provisions of the Central Act, the necessary conclusion is that Legislature did not intend to unspecify the provisions of the Central Act for exercise of power under the Act- If the Legislature would have merely adopted the Central Act, subsequent amendment to that Act made under 68/1984 Act would have been applicable per se. That is not the position in this case, In that view of the matter, we find the other contentions also untenable. We find absolutely no merit in this Appeal."
19. It is also relevant to cite the dictum of the Division Bench of this court in the case of MYSURU URBAN DEVELOPMENT AUTHORITY v. CHIKKABORAIAH in Writ Appeal No.5961 of 2003 decided on 12th January, 2011 wherein at paragraph 9 of the judgment, it is observed thus:
"9. The material on record would clearly show that final Notification was passed on 25.6.1988. Section 27 of the Act reads as follows:32
"27. Authority to execute the scheme within five years: where within a period of five years from the date of 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."
It is clear on perusal of the above said provisions of Section 27 of the Act that entire scheme will lapse if there is no substantial compliance in executing the scheme and the order passed by the Learned Single Judge to the effect that scheme has lapsed only insofar as it relates to the land of the petitioner is clearly contrary to the provisions of Section 27 of the Act. It is well settled that in view of the decision of this Court in K. Sathyanarayana, Since Dead by his LRs. v. State of Karnataka1, merely because there is dispute about taking possession and implementing the scheme insofar as the land of the Writ Petitioner is concerned, scheme will not lapse as the scheme would lapse when there is no substantial implementation of the scheme. Having regard to the particulars filed along with the affidavit of the Commissioner of the Appellant -- Authority and having regard to the allotment register which is produced, we are satisfied that there is substantial compliance with the scheme as the layout has been formed, allotment of civic amenity sites have been made and sites of various dimensions have been formed in an area of 240 acres out of 260 acres."
33
20. Following the aforementioned rulings, I am of the view that the respondent No.1-BDA has substantially implemented the scheme and in this regard, it is relevant to consider the scheme as a whole to look into the implementation of the scheme and not mere pockets of land of meager dimension which are left out by the respondent-authority for the reasons best known to them, cannot be a ground to quash the entire scheme formulated under the provisions of the relevant Act. It is also pertinent to mention here that since the very BHSR scheme of the respondent No.1-BDA carved in HSR Layout, has been confirmed by the Division Bench of this Court in L RAMAREDDY (supra) as also confirmed by the Hon'ble Supreme Court in Civil Appeals No.7661-7663 of 2018 (supra), I do not find any merit in the submission made by Sri R.S. Hegde. Accordingly, the contentions raised by the learned counsel appearing for the petitioner with regard to Section 24(2) of 2013 Act, cannot be accepted.
21. As regards the contention advanced by the learned counsel Sri R.S. Hegde, that the demolition of the building by 34 respondent-BDA is illegal, I have carefully considered the details mentioned in the schedule to the sale deed dated 06th October, 1990, wherein it is stated that one square sheet house of mud wall, no electricity and water facility, built before 1970 is situated on the subject land. No document has been produced by the petitioner with regard to existence of the building as shown in the photograph appended to the writ petition. In that view of the matter, I find force in the submission made by the learned Senior Counsel Sri D.N. Nanjunda Reddy, that if any damage has been caused to the petitioner herein, the petitioner has to approach Civil Court for redressal of his grievance in terms of the judgment of the Hon'ble Apex Court in the case of SATYAPAL ANAND (supra) and this Court has no jurisdiction to determine and adjudicate the actual damages that has been caused to the petitioner and therefore, writ petition deserves to be dismissed on this count also.
22. In respect of the submission made by the learned counsel appearing for the petitioner with regard to the allotment made in favour of the respondent No.3 herein, admittedly, this is 35 not a petition, challenging the action of the respondent No.1- BDA by way of public interest litigation. The Division Bench of this Court, in Writ Petition No.23475 of 2012 constituted a Enquiry Committee to look into the grievance of the allotments made under G-category sites by respondent No.1-BDA (Annexure-R14), and the Committee, after scrutinising the documents on record, held that the respondent No.3-allottee is entitled for a site under G-category and therefore, confirmed the allotment of subject site made by respondent No.1-BDA in favor of respondent No.3 and since the petitioner has not challenged the said conclusion arrived at by the Enquiry Committee, nor the petition is pro bono publico, I do not find any merit in the submission made by the learned counsel appearing for the petitioner to cancel the allotment made in favour of the respondent No.3 herein. I have also examined the provisions contained under Section 38-D of the BDA Act and Rule 11-A(1) of the Rules, and in this regard, the contention raised by the learned counsel appearing for the petitioner cannot be accepted. That apart, the allotment of such site is well within the domain of the respondent No.1-BDA and same has to be made in 36 accordance with the provisions contained under BDA Act and the respondent-authorities, having taken note of the entitlement of the respondent No.3, has arrived at a conclusion and allotted the site in question in favour of respondent No.3, which cannot be disturbed at the instance of the petitioner herein whose writ petition itself is not maintainable for the reasons stated above. Having answered the issued raised by the petitioner herein, I am of the view that the petition is liable to be dismissed, accordingly dismissed.
Sd/-
JUDGE lnn