Karnataka High Court
Mr. Mujahid B Makki vs The State Of Karnataka on 12 December, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 12TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE Mr. JUSTICE M.G.S. KAMAL
WRIT PETITION No.15300 OF 2020 (LA-KIADB)
BETWEEN:
1. MR. MUJAHID B. MAKKI
S/O BARKATULLA MAKKI
AGED ABOUT 69 YEARS
PRESENTLY RESIDING AT BUILDING NO.19
FLAT NO.601, ATUR PARK
KOREGAON PARK, PUNE
MAHARASHTRA-411 011.
2. MR. A. HSHUAIB, S/O ABDUL ALEEM
AGED ABOUT 70 YEARS
RETD. ASSOCIATE PROFESSOR
UNIVERSITY OF KVAFSU, HEBBAL
PRESENTLY RESIDING AT NO.221
NARAYANAPILLAI STREET
BENGALURU-560 001.
3. MR. TARIQ ALEEM
S/O MOHAMMED ISHAQ
AGED ABOUT 44 YEARS
PRESENTLY R/AT 221/1
NARAYANAPILLAI STREET
BENGALURU-560 001.
4. SMT. UMMAI SALMA SADATH
D/O ABDUL ALEEM ANSARI
AGED ABOUT 66 YEARS
PRESENTLY R/AT NO.20
2
4TH CROSS,
BAMBOO BAZAAR SHIVAJINAGAR,
BANGALORE-560 051.
5. A R IYOOB,
S/O ABDUL ALEEM ANSARI
AGED ABOUT 75 YEARS
PRESENTLY R/AT 221
NARAYANA PILLAI STREET
BENGALURU-560 001.
6. FATHIMA ZOHRA,
D/O MOHAMMED ISHAQ
AGED ABOUT 40 YEARS
PRESENTLY R/AT 221/1
NARAYANA PILLAI STREET
BENGALURU-560 001.
7. M U MUMTAZ BEGUM
W/O LATE MOHAMMED ISHAQ
AGED ABOUT 67 YEARS
PRESENTLY R/AT NO. 221/1
NARAYANA PILLAI STREET
BENGALURU-560 001.
8. ABDUL RAHEEM
S/O MOHAMMED ABDULLA
AGED ABOUT 70 YEARS
PRESENTLY R/AT NO.606
1ST FLOOR, 9TH CROSS, IST STAGE
5TH BLOCK HBR LAYOUT
BENGALURU-560 043.
...PETITIONERS
(BY SRI. Prof. RAVIVARMA KUMAR, SENIOR COUNSEL A/W
SRI. NAIK V. NITYANAND, ADVOCATE)
3
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS CHIEF SECRETARY
TO THE GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
BENGALURU-560 001.
2. THE SECRETARY TO
THE GOVERNMENT OF KARNATAKA
DEPARTMENT OF INDUSTRIES AND COMMERCE
VIKASA SOUDHA
BENGALURU-560 001.
3. THE PRINCIPAL SECRETARY TO
THE GOVERNMENT OF KARANATAKA
DEPARTMENTS OF HOME LAW AND ORDER
VIDHANA SOUDHA
BENGALURU-560 001.
4. THE GENERAL MANAGER
BENGALURU METRO RAIL CORPORATION LTD.,
CHINNASWAMY CRICKET STADIUM
GATE NO.10, MAHATMA GANDHI ROAD
BENGALURU-560 001.
5. THE SPECIAL DEPUTY COMMISSIONER
(LAND ACQUISITION)
KIADB, NRUPATHUNGA ROAD
BENGALURU.
6. THE SPECIAL LAND ACQUISITION OFFICER 1 AND 2
FOR THE PROJECT BENGALURU METRO RAIL
CORPORATION LTD.,
KARNATAKA INDUSTRIAL
DEVELOPMENT BOARD
NO.14/3, 1ST FLOOR
MAHARSHI RAVINDRA BHAVAN
CFC BUILDING, NRUPATHUNGA ROAD
BENGALURU-560 001.
4
7. THE DEPUTY COMMISSIONER
BENGALURU URBAN DISTRICT
KANDAYA BHAVAN, K G ROAD
BENGALURU-560 001.
8. MR. M MAHAMOOD
CHIEF MANAGER (LAND ACQUISITION)
BENGALURU METRO RAIL CORPORATION LTD.,
CHINNASWAMY CRICKET STADIUM
GATE NO.10, MAHATMA GANDHI ROAD
BENGALURU-560 001.
9. MR. A B VIJAYA KUMAR
SPECIAL LAND ACQUISITION OFFICER-2
KIADB (METRO RAIL PROJECT)
NRUPATHUNGA ROAD, BENGALURU-560 001.
10 . MR BALAPPA HANDIGUNDA
PREVIOUS SPECIAL LAND ACQUISITION OFFICER
KIADB, NRUPATHUNGA ROAD
BENGALURU.
11 . DR. ANURADHA N
SPECIAL DEPUTY COMMISSIONER
KIADB, NRUPATHUNGA ROAD
BENGALURU-560 001.
12 . THE DIRECTOR GENERAL AND INSPECTOR
GENERAL OF POLICE
ANTI-CORRUPTION BUREAU
KHANIJA BHAVAN
BENGALURU-560 001.
13 . ADDITIONAL DIRECTOR GENERAL OF POLICE
ANTI-CORRUPTION BUREAU
KHANIJA BHAVAN
BENGALURU-560 001.
5
14 . FAYAZ AHAMAD, S/O ABDUAL MALIK
204, 1ST CROSS,"A" BLOCK
RASHID NAGAR, MAIN ROAD
BANGALORE-560 045.
15 . BASHIRUM SAIT, W/O MOHAMMED
HANEEFSAIT 186, 3RD BLOCK
12TH CROSS, NEAR BDA COMPLEX
HRB LAYOUT, BANGALORE-560 043.
16 . FARUQ WARIS ALI, S/O FAROOQUI SAHEB
PEER# 4 55/1A, 7TH "B" MAIN
BTM LAYOUT, 1ST STAGE
BANGALORE - 560 029.
17 . MOHAMMED ZABIULLA
S/O MOHAMMED ZAKARIYA
No. 16/7, 15TH CROSS, 9TH MAIN ROAD
LAKKASANDRA NEW EXTENSION
WILSON GARDEN, BANGALORE-560 030.
18 . MOHAMMED SHAFIULLA
S/O MOHAMMED ZAKARIAYA
NO.16/7, 15TH CROSS , 9TH MAIN ROAD
LAKKASANDRA NEW EXTENSION
WILSON GARDEN, BANGALORE-560 030.
19 . MOHAMMED ANIS
S/O P. MOHAMMED ZAKARIAYA
NO. 16/7, 15TH CROSS, 9TH MAIN ROAD
LAKKASANDRA NEW EXTENSION
WILSON GARDEN,
BANGALORE-560 030.
20 . FAYAZ PASHA
S/O MOHAMMED ZAKARIYA
NO. 16/7, 15TH CROSS
9TH MAIN ROAD
LAKKASANDRA NEW EXTENSION
6
WILSON GARDEN
BANGALORE-560 030.
21 . SHABEER AHMED
S/O ABDUAL RAHMAN
# 36/1A,1ST CROSS
"A" BLOCK ARABIC COLLEGE
BANGALORE-560045.
SINCE DECEASED
RESPONDENT No.22 IS THE
LEGAL REPRESENTATIVE
22 . KHATOON P K
W/O SHABEER AHMED
NO. 36/1A, 1ST CROSS "A" BLOCK
ARABIC COLLEGE
BANGALORE-560 045.
23 . SHAIK SUHAIL AHAMD
S/O SHAIKH ABDUL SUBAN
NO.101/876, MADURAI
ISMAIL SAHIB STREET
KHADER PET, VANIYAMADI
VELLORE-635 751.
24 . SHAIKH SABIL AHAMD
S/O SHAIKH ABDUL SUBAN
NO.101/876, MADURAI ISMAIL SAHIB STREET
KHADER PET, VANIYAMBADI
VELLORE - 635 751.
25 . SHAIKH NAVEEN AHAMD
S/O SHAIKH ABDUL SUBAN
NO.101/876, MADURAI ISMAIL
SAHIB STREET, KHADER PET
VANIYAMADI, VELLORE - 635 751.
26 . TAUHID PASHA FAKRUDDIN
S/O FAKRUDDIN BASHA SAB
NO. 05 TAJ COMPLEX, UMMER NAGAR
7
NAGAVARA MAIN ROAD
ARABIC COLLEGE, BANGALORE-560 045.
27 . ABDUL RASHEED GAFFAR
S/O ABUDL GAFFAR, NO. 459, 6TH CROSS
VINOBHA NAGAR, KADUGONAHALLI
BANGALORE-560 045.
28 . SIRAJ ULLA KHAN, S/O ADAM KHAN
NO. 106/1, 23 WARD, CORPORATOR OFFICE
NAGAVARA MAIN ROAD, ARABIC COLLEGE
BANGALORE-560 045.
29 . MOHAMMED RAFIQ, S/O ABUDL JABBAR
NO. 30/2, 2ND CROSS
RAJU COLONY, ARABIC COLLEGE
MAIN ROAD, BANGALORE-560 045.
30 . SALIM AHAMAD, NO. 4493 WARD NO.9
SHETTIHALLI STREET
RAMANAGAR-571 511.
31 . SHAIKH AHMED, S/O NAYAZ AHMED
NO. 13, 4TH CROSS, GANDHI NAGAR
ARABIC COLLEGE POST
BANGALORE-560 045.
32 . NAJAM BEGUM, S/O SYED SAMI ULLA
NO. 19-2, 1ST STREET
BANGALORE NORTH
BANGALORE-560 045.
33 . SALMA BEGUM, W/O SHAKEEL AHMED
NO. 33/1 NEHRUPURAM
BHARATHI NAGAR
BANGALORE NORTH
BANGALORE-560 051.
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34 . SYED ZUVERIA, W/O SAIF PEERAN
NO. 30/2, 1ST CROSS
IBRAHIM SAHEEB STREET
RASHAD NAGAR
BANGALORE-560 045.
35. B.M.E REHMAN, S/O INAYUTHULLA KHAN
NO.19/1, 2ND CROSS
8TH MAIN, 3RD STAGE
MEDISCOPE HOSPITAL
PILLANNA GARDEN
ARABIC COLLEGE POST
BENGALURU - 560 045.
36 . KARHTICK BABU, S/O RAMMAIAH C.,
NO. 33/1, KRISHNAMMA NIVASA
1ST CROSS, NAGAVARA MAIN ROAD
RASHAD NAGAR, BANGALORE -560 045.
37 . KUMAR R, S/O RAMAIAH C
33/1 KRISHNAMMA NIVASA
1ST CROSS, NAGAVARA MAIN ROAD
RASHAD NAGAR, BANGALORE-560 045.
38 . WAHEEDA BEGUM, W/O INAYATHULLA KHAN
NO. 166, 11 CROSS, GOVINDAPURA
ARABIC COLLEGE POST
BANGALORE-560 045.
39 . PUDUR ZAHEDA BEGUM,
W/O MOHAMMED SHAFI V
NO. 954, 13TH CROSS
MASJID ROAD, ST. THOMAS TOWN
BANGALORE-560 084.
40 . K N RAFIQ, S/O K MOHAMMED
AGED ABOUT YEARS
3/6 1ST FLOOR 1ST MAIN
MASJID STREET, BANGALORE-560 005.
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41 . K.M. NOOR AHMED
S/O K ABDUL SATTAR SAHIB
NO. 3/6, 1ST FLOOR
1ST MAIN, MASJID STREET
BANGALORE-560 005.
SINCE DECEASED BY
RESPONDENT NO.40 IS THE LEGAL REPRESENTATIVE
VIDE COURT ORDER DATED:05.04.2022.
42 . SYED MANSOOR
S/O SYED ZIAULLA
NO. 27, 4TH CROSS "D" BLOCK
DR. APJ KALAM MAIN ROAD
GOVINDAPURA, BANGALORE-560 045.
43 . SYED SAWOOD
S/O SYED ZIAULLA
NO. 27 4TH CROSS D BLOCK
DR APJ KALAM MAIN ROAD
GOVINDAPURA
BANGALORE-560 045.
44 . SYED MASUD, S/O LATE No.12/28
NO. 2ND FLOOR, 5TH CROSS
BROAD SHAW STREET
NEHRUPURAM COLES PARK
BANGALORE-560 045.
45 . MUSTHAFA TOLURU, S/O ABDUL RAZAK
THOLOOR HOUSE, THAMARASSERI
NELLIKUTH POST, MANJERI PAYYANAD
MALAPPURAM, KEARALA-676 122.
46 . SARDAR AHMED, S/O ZACKRIA SAHIB
NO. 176 OTHAVADAI STREET
KODAMBAKKAM S O
CHENNAI, TAMILNADU-600 024.
10
47 . N. KIRUBAKARAN, S/O LATE P NATARAJ
NO. 15, 14 CROSS, MUNESHWAR NAGAR
D J HALLI, ARABIC COLLEGE
BANGALORE-560 045.
48 . NALIA AFRIN, W/O S ANEES AHMED
No.10/61, MEENAKSHI STREET CROSS
SHIVAJI NAGAR, BANGALORE-560 051.
49 . SYED RUBBANI, S/O SYED FAFFIC
NO. 302 RAJA COLONY
NAGAWARA, BANGALORE-560 045
(DELETED V/O DATED:25.11.2022)
50 . REHANA BANU, W/O BARKATHULLA
NO.E-38 "A" BLOCK, RAJA COLONY
RASHEED NAGAR, ARABIC COLLEGE
BANGALORE-560 045.
51 . THE KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD
DOOR NO.49, 5TH FLOOR
KHANIJA BHAVAN, EAST WING
RACE COURSE ROAD, BENGALURU - 560 001
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS
(BY SRI.YOGESH D. NAIK, AGA FOR R1 TO R3 & R7;
SRI. G. KRISHNA MURTHY, SENIOR COUNSEL AND
SRI. DILDAR SHIRALLI A/W ASHWINI B.N.,
ADVOCATES FOR R14 TO R22, R35, R38 & R45;
SRI. K. KRISHNA, ADVOCATE FOR R4 & R8;
SRI. BASAVARAJ V. SABARAD, SENIOR COUNSEL A/W
SRI. H.L. PRADEEP KUMAR, ADVOCATE FOR R5, R6, R9
TO R11, 51;
SRI. MAHESH R. UPPIN, ADVOCATE FOR R9 & R10;
SRI. M.K. SANTHOSHA, ADVOCATE FOR R26;
11
SRI. NAVEED AHMED, ADVOCATE FOR R29, R32, R33,
R48, R50 & R31;
SRI. MOHAMMED THOUHEED, ADVOCATE FOR R34;
SMT. USHA KUMARI, ADVOCATE FOR R47;
SRI. AJAJ J. NANDALIKE, ADVOCATE FOR R28, R36,
R37, R39, R42 TO R44;
SRI. B.S. PRASAD, ADVOCATE FOR R12 & R13;
R23, R24, R27, R30, R40, R46, R48 ARE SERVED &
UNREPRESENTED;
V/O DATED:05.04.2022 NOTICE TO R21 & 41 IS
DISPENSED WITH;
V/O DATED:05.04.2022 R40 IS LR's OF DECEASED R41;
V/O DATED:05.04.2022 R22 IS LR's OF DECEASED R21;
V/O DATED:25.11.2022 R49 IS DELETED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO (I)
ISSUE WRIT ORDER OR DIRECTION IN THE NATURE OF
CERTIORARI TO QUASH THE ORDER BEARING
NO.KIADB/METRO/BHUSWA/AR-R6-UG-P22/2019-20, KIADB/
METRO/BHUSWA/AR-R6-UG-P23/2019-20, KIADB/
METRO/BHUSWA/AR-R6-UG-P24, 25, 26/2019-20, KIADB/
METRO/BHUSWA/AR-R6-UG-P27, 28/2019-20, KIADB/
METRO/BHUSWA/AR-R6-UG-P30A/2019-20, KIADB/
METRO/BHUSWA/AR-R6-UG-P30C/2019-20,KIADB/METRO/
BHUSWA/R-R6-UG-P35, 36, 37/2019-20, KIADB/METRO/
BHUSWA/ AR-R6-UG-P38/2019-20, KIADB/METRO/ BHUSWA/
R-R6-UG-P40&41/2019-20, KIADB/METRO/ BHUSWA/AR-R6-
UG-P42/2019-20, KIADB/METRO/ BHUSWA/AR-
R6-UG-P43/ 2019-20, KIADB/METRO/ BHUSWA/AR-R6-UG-P44/
2019-20, VIDE ANNEXURES-V, V1, V2, V3, V4, V5, V6, V7, V8,
V9, V10 AND V11 RESPECTIVELY, PASSED BY THE SPECIAL
LAND ACQUISITION OFFICER NAMELY THE 5TH RESPONDENT
DATED 07.11.2019 IN DECLARING THE CLAIM OF
RESPONDENTS WITHOUT REFERRING THE MATTER FOR
ADJUDICATION AS BAD IN LAW AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE
COURT MADE THE FOLLOWING:
12
ORDER
This writ petition is filed seeking following reliefs;
(a) quash of orders produced at Annexures-V to V11 all dated 07.11.2019 passed by the Special Land Acquisition Officer-respondent No.5 in declining the claim of the respondents without referring the matter for adjudication.
(b) setting aside the compensation award and package fixed by Metro Rail Corporation as per Annexures-AA to AA11;
(c) direction to the respondent Nos.5 and 6 to pass fresh award as per Section 30 of the Karnataka Industrial Areas Development Act, 1966 (for short 'KIAD Act') in respect of land in Sy.No.30/3 of Naagavara village as per final notification issued under Section 28(4) of the KIAD Act as per Annexure-J
(d) direction to respondent Nos.12 and 13 to conduct enquiry by filing FIR on the complaint filed by the petitioners as per Annexure-AC;
(e) direction to the Karnataka Industrial Areas Development Board (for short KIADB) and the Secretary of the Revenue Department to conduct disciplinary enquiry against the respondent Nos. 9 and 10 for fraud and abuse of power, collusion, corrupt practice, conspiracy committed by them.
2. Facts of the case leading to filing of this petition briefly stated are;
13
(a)That one Mohammed Ishaq was the original kathedar of land bearing Sy.No.30/3 totally measuring 3 acres 10 guntas situated at Nagavara village, Bangalore North Taluk, which was subject matter of an acquisition by the Bangalore Development Authority during the year 1977. That an award had been passed on 18.02.1988 as per Annexure-C in respect of 2 acres 30 guntas out of said 3 acres 10 guntas of land and an extent of 20 guntas of land had been excluded as the same consisted of buildings. That in all these proceedings said Late Mohammed Ishaq has been referred to as the Kathedar.
(b) that the petitioners are the decedents of said Late Mohammed Ishaq. That a suit in O.S.No.5220/1992 was filed for partition of the aforesaid property, and the said suit was dismissed solely on the ground that the land had been acquired by BDA and was not available for partition. Aggrieved by the same a regular first appeal in RFA No.670/2005 was filed before this Court which was partly allowed modifying the judgment and decree passed 14 in O.S.No.5220/1992, in terms of which petitioners were held to be entitled to 3/4th share in the suit properties and remitted the matter for fresh consideration on the findings recorded by the trial court. That after the remand of matter the parties entered into a compromise and a compromise decree was passed in the said suit on 28.02.2020.
(c) That during the pendency of the above suit, KIADB had issued a preliminary notification dated 29.08.2018 followed by a final notification dated 17.01.2019 seeking to acquire the aforesaid land in Sy.No.30/3 for Metro Rail Corporation. That immediately on learning about the same, petitioners and other legal heirs of Mohammed Ishaq approached the authorities and submitted representations along with relevant records to consider them as the owners, kathedars for the purpose of acquisition proceedings and benefits thereof.
(d) The petitioners also approached this Court by filing a W.P.Nos.7797-98/2019 seeking direction to the 15 respondent-authorities to consider their objection statements while disbursing compensation amount.
(e) That without considering the representations and claim made by the petitioners and without even considering the orders passed in the RFA No.670/2005, the pendency of suit in O.S.No. 5220/1992 and the order passed in W.P.No.7797-98/2019 and without even the consent of the petitioners, the respondent-authorities mentioning the names of certain strangers as kathedars of various pieces of land carved out in land in Sy.No.30/3 arbitrarily forwarded the alleged consent award for disbursal of the compensation.
(f) That in the circumstances the respondent- authorities ought to have referred the matter to the Civil Court for adjudication of right, title and interest of persons claiming various pieces of land as mentioned in the acquisition notification and instead without even affording sufficient opportunity, in collusion and on the basis of concocted documents passed the impugned orders on 16 07.11.2019 and disbursed the compensation on 08.11.2019.
(g) That the petitioners and their representatives approached KIADB seeking relevant records pertaining to aforesaid acquisition proceedings. Taking advantage of Covid-19 pandemic the respondent-authorities mislead the petitioners and did not disclose about passing of the impugned order or disbursement of the amount, constraining the petitioners to approach this Court.
(h) That in furtherance to conspiracy between the officers of KIADB and the middlemen, stamp papers were purchased in the month of July and August, 2019 i.e., even before determination of compensation. Documents were fabricated in anticipation of the award amount. Thus, there is fraud, collusion, conspiracy and misuse of power vitiating the entire process of acquisition of property. Hence the writ petition.
3. Statement of objections has been filed by respondents 5, 6 and 11 contending inter alia that: 17
(a) properties notified included sites of various dimensions mentioned at Sl.Nos.131 to 162 carved out of Sy.No.30/3 of Nagavara Village within the boundaries specified in the notification. That admittedly the said property measured 3 acres 10 guntas out of which 2 acres 30 guntas had already been acquired by BDA and the notification was only in respect of 20 guntas.
(b) Referring to the details of the names of the persons notified and the other particulars of the land it is contended that notification for acquisition of land was issued on the basis of entries made in the revenue records of the BBMP. That since names of none of the petitioners are found in the relevant revenue records, names of the private respondents 14 to 50 were notified as Khathedars and Anubhavadars based on their names in the revenue records. That the petitioners have not produced any records showing their names having been entered in the revenue records even in the writ petition. 18
(c) That on issuance of final notification under Section 28(4) of the Act the land stood vested with the State free from all encumbrances in terms of Section 28(5) of the Act.
(d) That though by order dated 04.09.2012 passed in RFA No.670/2005 this Court had remitted the matter for consideration afresh on the additional issue Nos.1 and 7, the parties to the suit did not pursue the proceedings before the Civil Court, as such there has been no decision on their rights. All of a sudden in the month of February, 2020 parties have filed a compromise memo and have obtained a compromise decree on 28.02.2020. Though the said compromise decree refers to sharing pattern, it does not refer to the particulars of the properties to which it relates. No description of the properties are given in the schedule to the compromise. However, there are two schedules given in the compromise. Schedule A relates to entire extent of 3 acres 10 guntas while Schedule B relates to 20 guntas in Sy.No.30/3. KIADB and BMRCL were not 19 parties to the suit. By the time the compromise was arrived at the acquisition proceedings had attained finality.
(e) That the KIAD Act being a special enactment provides for settlement of compensation by agreement. In the instant case compensation package was sent on 22.07.2019 by BMRCL in respect of all the properties acquired. A notice in terms of Section 29(2) was issued to the owners/khathedars asking them to submit documents as stated in the notice for payment of compensation. Accordingly they submitted the documents after accepting the package compensation and requested to pay the compensation.
(f) That the land acquisition officer has acted in accordance with law in acquiring the land and following the provisions of law. That the objections of the petitioners have been considered before disbursement of the compensation vide detailed orders as per Annexure-B series.
20
(g) As regards the allegation of purchasing the stamp papers in the month of July and August, 2019 foreseeing the result of conspiracy and grabbing of compensation amount it is contended that as soon as the compensation package was received from the Committee, notices as per Annexure-R-1 series were issued under Section 29(2) of the KIAD Act notifying the khathedars about receipt of the package and asking them if they were agreeable to receive the same. They were also asked to submit the documents to facilitate the payment of compensation. One such document as per Sl.No.7 is requirement of submitting three stamp papers of Rs.100/- each for executing agreement and indemnity bond. It is in furtherance to this requirement stamp papers were furnished. Thus, the allegation of fraud in obtaining stamp papers in the months of July and August is denied.
(h) That the Land Acquisition Officer had received objection from the petitioners on 25.04.2019 and 23.07.2019 and in order to provide opportunity to them 21 had issued notices on 26.07.2019 requiring them to appear for enquiry on 01.08.2019. In response the petitioners appeared and took time to submit documents and the matter was posted to 05.08.2019 in which some of the petitioners appeared in person and some through their advocates.
(i) That though in the order dated 08.03.2019 passed in W.P.Nos.7797-98/2019 petitioners were directed to seek appropriate direction by filing applications in O.S.No.5220/1992, no such applications were filed and no orders have been obtained by the petitioners from the Court against payment of compensation to the notified khathedars or orders restraining the authorities from making the payment. In the circumstances, the officers after conducting the enquiry and hearing the petitioners/objectors came to the conclusion that there was no justification to withhold the compensation as notified khathedars had placed the valid documents in support of their claim and passed the orders on 22 07.11.2019 as per Annexure-B series for disbursement of compensation.
(j) That keeping the time schedule fixed for implementation of the project the SLAO had made the payment of compensation to take possession and hand over the same to the project agencies. Statement showing disbursement of amount is produced at Annexure-R-2 and R-3.
(k) That a complaint was filed before the Lokayuktha by the petitioners on the same set of allegations and the same has been closed as it was found to be not a fit case for probing. Endorsement issued by Karnataka Lokayuktha in this regard has been produced at Annexure-R-4.
Hence, sought for dismissal of the petition.
4. Respondents 14 to 22, 35, 38, 42 and 43 in their statement of objections have contended that;
(a) originally the subject property belong to Mohammed Ishaq Saheb who died in the year 1928 leaving behind three sons and five daughters namely (1) Abdul 23 Baqui Ansari (2) Mohammad Abdul Wasai Ansari (3) Amtul Rasheed (4)Amtul Hadi (5) Amtul Musawari (6) Mariam Bi (7) Amtul Samad and (8) Abdul Aleem Ansari. Out of them, two sons and five daughters had executed a registered Release Deed dated 21.11.1945 in favour of Abdul Wasai Ansari by receiving the consideration relinquishing their rights in the subject property.
(b) That the said Abdul Wasai Ansari remained a bachelor during his life time and he died on 03.08.1980. That during his life time he had entered into an agreement with one Sri.Samiulla, S/o Mohammed Hanif by receiving consideration for development of the subject land by forming a residential layout and to dispose of the sites.
(c) That the said land has been acquired by BDA. At the instance of said Sri.Samiulla the State Government and the authorities dropped the acquisition proceedings on 13.12.1984 and denotified from acquisition. Before the said Samiulla could obtain a registered conveyance said Sri.Abdul Wasai passed away. As such, Samiulla again 24 entered into agreement to sell in respect of the subject land with the legal heirs of Mohammed Ishaq Sahib and obtained general power of attorney and special power of attorney and formed layout consisting of 54 sites in the said land by obtaining necessary permission from the concerned authorities.
(d) That the said Sri.Samiulla had acquired the right over the entire land in Sy.No.30/3 which was owned by late Abdul Wasai Ansari. That the petitioners claiming the land in question through Abdul Baqui Ansari as grand children of brother of said Abdul Wasai. That in view of execution of relinquishment deed they had no right over the property. It is submitted that the compensation had been paid based on the right, title and interest of the private respondents who have acquired the property in accordance with law and the petitioners have no claim over the same. Hence, sought for dismissal of the writ petition.
5. Professor Sri.Ravi Verma Kumar, learned Senior counsel appearing for Sri.Nithyanand V Naik, learned 25 counsel for petitioners reiterating the grounds urged in the writ petition submitted that;
(a) Petitioner No.8 Sri.Abdul Raheem filed statement of objections before the BMRCL on 15.10.2018 bringing to their notice the pendency of suit in O.S.No.5220/1992 and also the order passed in RFA No.670/2005 by this Court determining the rights of the petitioners in the subject property. He further refers to statement of objections filed by petitioner No.1 on 03.12.2018 as per Annexure-L wherein it is claimed that Sri.Mohammed Ishaq was the owner of the property and that after his demise Mohammad Abdul Wasai Ansari the maternal uncle of the petitioner was the owner and that after his death the schedule property has been inherited by the petitioners and others. That a suit in O.S.No.5220/1992 filed for partition was pending consideration that during the pendency of the suit acquisition was made for Metro Rail Project and illegal claims were made by several persons for compensation. That the said petitioner No.1 had again 26 filed a representation on 27.03.2019 again requesting the respondent authorities to consider their rights and claims while awarding the compensation. That the petitioners No.2, 3, 5, 6, 7 had also filed detailed statement of objections along with documents in the nature of family tree, release deed, death certificate of Abdul Wasai, plaint, written statement and order sheet in O.S.No.5220/1992. That petitioner No.8 once again filed the representation on 23.07.2019. Thus, referring to representations at Annexures-K to S filed by the petitioners referred to above, learned Senior counsel submitted that none of the contentions raised in these representations/objections have been considered by the respondent No.6-SLAO.
(b) That since there is no consent given by the petitioners who were the rightful claimants, the respondent authorities could not have passed the award under Section 29(2) of KIAD Act.
(c) That the award amount of Rs.62 Crores has been disbursed to the private respondents within 24 hours 27 signifying the collusion between the private Respondents and respondent authorities.
(d) That perusal of stamp papers produced by the private claimants would indicate the same had been brought in anticipation of the collusive award.
(e) That the fraud has been perpetrated which vitiates the entire process of acquisition.
(f) That some of the purchasers had purchased portion of subject property during the pendency of suit in O.S.No.5220/1992.
(g) That One Samiulla who claimed to have entered into agreement with Abdul Wasai Ansari and having obtained power of attorney had filed an application in I.A.No.3 in O.S.No.5220/1992 seeking to implead himself as additional defendant No.10 and that the trial Court by a detailed order dated 02.09.1994 rejected the said application holding that upon the death of said Abdul Wasai Ansari said Samiulla had no right to claim or act on behalf of the owner. Thus, learned Senior counsel submit 28 that the said Samiulla cannot claim to have any right, claim and interest over the property.
(h) Learned Senior counsel referring to impugned award dated 07.11.2019 submitted that there is no reference to the representations made by the petitioners indicating application of mind by the respondent-SLAO in determining the objections raised by the petitioners. He submitted that non-consideration of the objections raised by the petitioners had rendered the award process illegal and unsustainable. In support of this contention learned Senior counsel relied upon Judgment of this Court in the case of SADASHIVA AND OTHERS VS. STATE OF KARNATAKA AND OTHERS reported in ILR 2003 Kar
588.
(i) As regards delay in approaching this Court, learned Senior counsel submitted that no notice regarding conclusion of proceedings were issued to the petitioners. That there was COVID 19 Lockdown during the said period. That on learning about passing of the award and 29 immediately on relaxation of the lockdown, the petitioner filed RTI application on 31.08.2020 as per Annexure-AB and obtained the relevant copies and thereafter filed the present writ petition.
(j) That due to COVID 19 pandemic petitioners could not file application under Section 18 of the Land Acquisition Act seeking reference of the matter.
Hence, seeks for allowing of the petition.
6. Sri.Basavaraj V. Sabarad, learned Senior counsel appearing for Sri.H.L.Pradeep Kumar, learned counsel for respondent-KIADB submitted that;
(a) petitioners had earlier approached this Court in W.P.Nos.7797-98/2018 wherein by order dated 08.03.2019 the Co-ordinate Bench of this Court taking into consideration the pendency of the suit in O.S.No.5220/1992 while declining to interfere in the process, had disposed of the writ petition reserving liberty to the petitioners to seek appropriate direction with regard to compensation amount to be determined by respondent 30 authorities by filing application. He submitted that no such application was filed by the petitioners.
(b) He referred to the Judgment and decree passed in said O.S.No.5220/1992 and submitted that the trial Court has observed the contentions of defendants 1 to 3 therein with regard to execution of power of attorney by Abdul Wasai Ansari in favour of Samiulla and the burden of proving the agreement of purchase and the power of attorney was casted on defendants 1 to 3 and the trial Court has held the execution of the said agreement and power of attorney in the affirmative. That the petitioners not having challenged the said finding cannot now be permitted to dispute the same.
(c) Referring to compromise decree produced at Annexure-G learned Senior counsel submit that the said compromise decree has been obtained subsequent to passing of the award and disbursement of the award. He submits though plaintiffs and the defendants have divided 31 their share of properties but have not given particulars as to which of the properties the division pertains to.
(d) Referring to impugned awards learned Senior counsel submit that the respondent-Special Land Acquisition Officer indeed has adverted to suit in O.S.No.5220/1992, order in RFA No.670/2005 and order dated 08.03.2019 passed in W.P.Nos.7797-98/2019. That the SLAO has also referred to the rights of the parties and the subsequent transactions between Abdul Wasai Ansari and Mohammad Samiulla and also deeds of sale executed in favour of the private respondents. That after considering these materials placed on record the respondent-SLAO has passed the impugned award. But since there is no serious dispute with regard to title the respondent authority passed the impugned award which is well within the purview of his jurisdiction. That there is no requirement of conducting a rowing enquiry into the matter.
32
(e) In support of his submissions learned Senior counsel relied upon the following citations:
(i) S.Venkatashamappa Vs State of Karnataka and others reported in ILR 2003 Kar 4496.
(ii) Afzal Bee Vs Special Deputy Collector and others reported in AIR 1978 AP 463.
(iii) State of UP and others Vs Kashi Prasad reported in (2007) 15 SCC 205.
(iv) N.Somashekar and others Vs State of Karnataka and others reported in (1997) 7 KLJ
410.
Hence, seeks for dismissal of the petition.
7. Sri.Krishnamurthy, learned Senior counsel appearing for the private respondents 14 to 22 submitted that;
(a) The award amount has been disbursed on 17.11.2019, where as present writ petition has been filed on 17.11.2020, i.e., after lapse of over 1 year from the date of disbursement of the award.
(b) that the preliminary notification had been issued on 20.09.2018 and all the petitioners had appeared before 33 the respondent-SLAO. That after consideration of the objections final notification had been issued on 17.01.2019. That the petitioners herein had filed the writ petition in W.P.Nos.7797-98/2019. On 08.03.2019, the said writ petitions was disposed of directing the petitioners to file necessary applications in the suit in O.S.No.5220/1992 seeking direction to the authorities for compensation and no such applications were filed.
(c)That the land acquisition officer has passed detailed orders taking into consideration of all the points raised by the petitioners.
(d) that there is no challenge to the final notification till date.
(e) that since there was alternate and efficacious remedy available to the petitioners by way of seeking reference, only to overcome the point of delay the petitioners have approached this court by filing the present writ petition.
(f) Learned counsel relied upon;
34
(i) the order of the Division Bench of this court in the case of R.Sethuram and others vs. State of Karnataka and Others in W.A.No.1065/2021 disposed of on 10.03.2022 and
(ii) Swaika Properties (private) Limited and another vs. State of Rajasthan and another reported in (2008)4 SCC 695.
8. Sri. Naveed Ahmed, learned counsel appearing for the private respondents 29,31 to 33, 48 and 50 submitted that these respondents have nothing to do with the subject property as their land falls part of survey No.30/2 and not 30/3. Thus, he submitted that these respondents have been made parties without any basis and they may be deleted from the array of parties.
9. Heard. Perused the records.
10. Apex court in the case of AFZAL BEE. VS. SPECIAL DEPUTY COLLECTOR AND OTHERS reported in AIR 1978 A.P. 463 at para 6 has held as under;
"6. If Sections 11, 29, 30 and 18 are read together, it becomes obvious that the Land Acquisition Officer has the jurisdiction to apportion the compensation among the persons interested while making an award. That necessarily means that he has 35 the jurisdiction to decide questions of title if such questions are raised before him. But instead of deciding the question of title himself, he has the option to refer such questions to the Court under S. 30 of the Act. Naturally, where complicated questions of title arise, the Land Acquisition Officer will be expected to refer the questions for the decision of the Court under S. 30. But where the questions raised are simple, the Land Acquisition Officer may himself deal with them and incorporate his decision in the award. If he does not and if a party is aggrieved by the apportionment of compensation, such party may seek a reference under S. 18 of the Act. In the present case, the Land Acquisition Officer on the basis of the revenue records came to the conclusion that the petitioner was not entitled to any share in certain survey numbers. He noticed that the petitioner did not choose to adduce any evidence in support of her claim in regard to her share in those survey numbers. The entire amount of compensation in regard to those survey numbers was awarded to respondents 2, 3 and 4. It does not appear that the Land Acquisition Officer has exceeded his jurisdiction in making such award".
11. The aforesaid law laid by the Apex Court with regard to jurisdiction of the land acquisition officer has been followed by this Court in the case of SRI. VENKATARAMANAPPA VS. STATE OF KARNATAKA reported in ILR 2003 Kar. 4496 wherein at para 9 it has been held as under;
"9. Thus, by a conjoined reading of Section 29 of the Development Act and Section 11 of the Act, the Deputy Commissioner has to hold an enquiry regarding the entitlement of a person to claim and receive compensation. In the process of conducting an enquiry regarding the entitlement as held by the decision of the Andhra Pradesh 36 High Court by Justice Chinnappa Reddy, as he then was, cited by the learned Counsel for the contesting respondent in AFZAL BEE vs SPL. DEPUTY COLLECTOR AND OTHERS (supra), the Land Acquisition Officer has jurisdiction to decide even the question of title if it is raised before him. But, if he feels that the 'question of title' is a complicated one, he may refer the matter to a Civil Court. The process of deciding the claim of the claimant necessarily carries with if the obligation of applying his mind to the material produced or available on record in a fair manner, fairness means that if the land Acquisition Officer wants to use any adverse material or document adverse to the interest of claimant, it can only be done after drawing the attention of the claimant to the adverse material and soliciting his comments or objections, etc. By not doing so, he would be violating the elementary principles of natural justice. Similarly, while conducting the enquiry as stated above, the Land Acquisition Officer will be performing statutory functions and therefore, has to independently take a decision on the basis of records available before him and cannot act on the dictates of any authority however superior he may be."
12. Learned Senior counsel for the petitioner relied upon the judgment of Coordinate Bench of this Court in the case of SADASHIVA AND OTHERS VS. STATE OF KARNATAKA AND OTHERS reported in ILR 2003 KAR.5088, wherein at paragraph 17, 18, 20 has held as under;
17. Re.Point No. (ii):- By the impugned orders the Land Acquisition Officer has not only rejected the claim for compensation by the petitioners but also has declared that the petitioners have no title to the property acquired and it is the Government which is the lawful owner of the property, as such the petitioners are not 37 entitled to any compensation. In other words in a proceedings initiated under the Land Acquisition Act, the Land Acquisition Officer has gone into the question of title of the parties and has declared that the petitioners have no title to the property acquired and the title of the property vests with the Government. Therefore, it becomes necessary to decide whether the Land Acquisition Officer under the Act has been vested with such power to declare the title of the parties to the land acquired.
Learned Counsel for the respondent relied on two judgments of the Andhra Pradesh High Court in the case of AFZAL BEE vs THE SPECIAL DEPUTY COLLECTOR AND OTHERS and in the case of GOVINDU VENKATA REDDY vs K. KRISHNA RAO AND ANOTHER where it has been held after noticing Section 11,18, 29, 30, 31 and 32 that the LAO had the jurisdiction to go into the disputed questions of time. Therefore, it was contended that the impugned order passed by the LAO is valid and legal and the aggrieved person has a remedy by way of a reference under Section 18 of the Act, as such these Writ Petitions are not maintainable.
18. The judgment of the Supreme Court in Raja Harish Chandra Raj Singh's case makes it abundantly clear that the award to be passed by the LAO is a tender or an offer made by the Collector on behalf of the Government to the owner of the property for his acceptance. In deciding the amount of compensation payable the collector holds an enquiry and the said enquiry is confined to the valuation of the property, i.e, to ascertain the market value of the property before an offer could be made to the owner of the land. The said valuation is made by the LAO as an agent of the Government and not as a judicial officer. It is an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired. If that is the correct legal possession it cannot be said that while making an administrative decision the Collector could decide the dispute regarding title to the property and that he has the power to decide the complicated question of title. Infact the enquiry referred to in Section 11 is confined only to enquiry into the objections which any person interested has stated 38 pursuant to a notice given under Section 9 to the measurements made under Section 8 and into the value of the land at the date of publication of the notification under Section 4 sub-section (1) and into the respective interests of the persons claiming the compensation. In other words in the enquiry what the Land Acquisition Officer is expected to enquire into is the true area of the land for which he has to pay compensation and bearing in mind Sections 23 and 24 of the Act, the value of the land acquired and further if there are more than one claimant claiming compensation incidentally he has to go into the question of their respective interests in the land for apportionment of the compensation payable. Even for the limited purpose of apportioning the compensation payable he has to enquire into the respective interests of the claims it cannot be said in such an enquiry he should go into the question of dispute regarding title of the respective claimants and more so he can go into the question of title between the claimants and the Government when the Government is not claiming any apportionment of the compensation. Having regard to the scheme of the Land Acquisition Act after the LAO decides the true area of the land and the compensation which is payable for the said land in regard to the apportionment of the compensation if several persons interested in the said compensation agree for the apportionment of the compensation, the particulars of such apportionment shall be specified in the award and as between such persons the award shall be conclusive evidence of the correctness of the apportionment. In other words when the parties claiming compensation by agreement decides to receive the compensation in a specified manner all that the Land Acquisition Officer is expected to indicate in the award is the agreement entered into between such persons. Therefore, the question of Land Acquisition Officer deciding the title of the parties for the purpose of apportionment of the land would not arise in such circumstances. However, if the parties do not agree for the apportionment of compensation, the LAO has the jurisdiction to apportion the said compensation among all the persons known or believed to be interested in the land of whom or of whose claim he has information, whether or not they have respectively appeared before 39 him. Having regard to the language employed in Section 11, the enquiry by the LAO is to enquire into their respective interests of the persons claiming the compensation, it presupposes that every person who is claiming compensation has title or interest to the property acquired and it is only the extent of such interest or title which is in dispute. But in such an enquiry, the Land Acquisition Officer is not called upon to decide the title of the persons claiming compensation at all. Therefore, in an enquiry to be held under Section 11, the status does not contemplate the LAO enquiring into the existence or non-existence of title of the claimants to the property acquired or to decide in whom else the title of the property vest.
20. It is equally possible a person interested in the land and the compensation may not have notice of the acquisition proceedings or after the passing of the award one may acquire title to the property which is acquired. It is open to such a person to put forth a claim before the Land Acquisition Officer claiming the amount of compensation and contending that the amount of compensation awarded by him should not be paid to the persons to whom the said award sets his title. In such circumstances, it is open to the Collector to refer such dispute to the decision of the Court. There is no period prescribed in such circumstances either for making an application by the claimant to the LAO seeking a reference or for the LAO to refer the mater to the Civil Court. It is also open to the LAO not to make any reference at all. It is left to his discretion. In which event it is for the claimant to approach Civil Court for appropriate reliefs. Section 31 of the Act deals with a situation where on making of the award under Section 11 when the collector tenders payment of the compensation awarded by him to the persons Interested entitled thereto according to the award and if such persons do not consent to receive it or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive compensation or as to the apportionment of it, then the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted. Therefore, this provision makes it clear the Land 40 Acquisition Officer has the absolute power to award compensation and also to apportion the compensation awarded. But once there is a dispute regarding title to receive the compensation or as to the apportionment of it and the persons to whom compensation is awarded are not prepared to receive it then his hands are tied. He cannot make any payment to any one of them named in the award. He shall deposit the amount of compensation awarded in the Civil Court to which a reference under Section 18 would be submitted. Therefore, the entire scheme of Sections 11, 18, 30 and 31 of the Act read together makes it abundantly clear that the Land Acquisition Officer has not been vested with the power to go into the title of the claimants or go into the question of title of the property acquired. The limited jurisdiction vested in him is to enquire into the respective interests of the persons claiming the compensation so as to apportion the said compensation among all the persons known or believed to be interested in the land. Therefore, such an enquiry cannot be equated to an enquiry to going to the question of title to the property in dispute and he is not empowered to declare the title of any of the persons. Therefore, with great respect to the views expressed by the learned Judges of the Andhra Pradesh High Court, I am of the opinion that in the scheme of the Act, the LAO is not empowered to going to the question of complicated question of title of the property sought to be acquired".
13. Reading of the aforesaid judgments of the Apex court and of the Coordinate Benches of this Court reveal that the land acquisition officer though has power and authority to look into the issue with regard to title of the parties to the land acquired, he cannot decide upon the complicated questions of title. The said decisions also make it clear the land acquisition officer has option in the 41 case of complicated question of title to make a reference under Section 18 of the Land Acquisition Act, 1894.
14. The Coordinate Bench of this Court in the case of CHINNASWAMY LINGAPPA VS. STATE OF KARNATAKA 2017(2) K.L.J 185 while dealing with the question of enquiry to be held by the land acquisition officer under Section 28(2) of the KIAD Act, 1966 referring to the judgments of the Apex Court on the subject at paragraphs 7, 8, 9, 10 and 11 has held as under;
7. Sub-section (2) of Section 28 of the Act states, on publication of a notification under sub-section (1), the State Government shall serve notice upon the owner or where the owner is not the occupier on the occupier of the land and on all such persons known or believed to be interested therein to show-cause, within thirty days from the date of service of the netics, why the land should not be acquired. Sub- section (3) of Section 28 of the Act states, after considering the cause, if any, shown by the owner of the land and by any other person interested therein, and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit.
8.In The Barum Chemicals Ltd. and another v. A.J. Rana and others, MANU/SC/0488/1971 AIR 1972 SC 591, the Apex Court was considering the meaning of the word "consider". It has been held thus:
"The words 'considers it necessary' postulate that the authority concerned has thought over the matter 42 deliberately and with care and it has been found necessary as a result of such thinking to pass the order. The dictionary meaning of the word consider is to view attentively, to survey, examine, inspect (arch), to look attentively, to contemplate mentally to think over, meditate on, give need to, take note of, to think deliberately bethink oneself, to reflect (vide Shorter Oxford Dictionary). According to Words and Phrases Permanent Edn: Vol.8-A to consider means to think with care. It is also mentioned that to 'consider is to fix the mind upon with a view to careful examination; to ponder; study meditate upon, think or reflect with care. It is therefore, manifest that careful thinking or due application of the mind regarding the necessity to obtain and examine the documents in question in since que non for the making of the order. If the Impugned order were to show that there has been no careful thinking or proper application of the mind as to the necessity of obtaining and examining the documents specified in the order, the essential requisite to the making of the order would be held to be non- existent."
9. This Court to the case of D. Hemachandra Sagar and another v. State of Karnataka and others, 1999 (1) KLJ 510 was considering the case relating to consideration of objections by the Bangalore Development Authority under Section 17(5) of the Act. It has been held as under:
"A statutory Authority like BDA evolves its own procedure to consider the representations filed by the owners in respect of the proposed acquisition. There is no hard and fast rule that the Authority itself should consider each of the representations before making appropriate orders. However, it is settled that the consideration of the representation by any Authority should be in the manner recognised by law. 'Consideration of representation' postulates that the Authority concerned has thought over the matter by applying its mind to the relevant portion of the representations and may make its recommendation assigning reasons for such recommendation. Mere extracting the nature of objections and his remarks without assigning reasons is no consideration at all."43
10. The Apex Court in the case of Hindustan Petroleum Corpn. Ltd., v. Darius Shapur Chenal and others, MANU/SC/0610/2005: 2005 (7) SCC 627 (AIR 2005 SC 3520) was considering the scope of Section 5-A of the Land Acquisition Act, which is in pari materia with Section 28(3) of the Act. It has been held as under:
"The Land Acquisition Act is an expropriatory legislation. In such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. Section SA of the Act confers a valuable and Important right in favour of a person whose lands are sought to be acquired and having regard to the provisions contained in Article 300-A of the Constitution it has been held to be akin to a fundamental right. The State in exercise of its power of "eminent domain"
may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid".
It has been further held as under:
"The conclusiveness contained in Section 6 of the Act indisputably is attached to a need as also the purpose and in this regard ordinarily, the jurisdiction of the Court is limited but it is equally true that when an opportunity of being heard has expressly been conferred by a statute, the same must scrupulously be complied with. For the said purpose, Sections 4, 5 and 6 of the Act must be read conjointly. The Court in a case, where there has been total non-
compliance or substantial non-compliance of the provisions of Section 5-A of the Act cannot fold its hands and refuse to grant a relief to the writ petitioner. Section 6(3) of the Act renders a declaration to be a conclusive evidence. But when the decision making process itself is in question, the power of judicial review can be exercised by the Court in the event the order impugned suffers from well- known principles, viz., legality, Irrationality and procedural impropriety. Moreover, when a statutory authority exercises such enormous power, it must be done in a fair and reasonable manner, 44
11. In Raghbir Singh Sehrawat v. State of Haryana and others (MANU/SC/1429/2011 AIR 2012 SC
468): (2012) 1 SCC 792, the Apex Court has held as under:
42. It is difficult, if not impossible, to appreciate as to why the State and its instrumentalities resort to massive acquisition of land and that too without complying with the mandate of the statute. As noted by the National Commission on Farmers, the acquisition of agricultural land in the name of planned development or industrial growth would seriously affect the availability. of food in future.
After independence, the administrative apparatus of the State has not spent enough investment in the rural areas and those who have been doing agriculture have not been educated and empowered to adopt alternative sources of livelihood. If land of such persons is acquired, not only the current but the future generations are ruined and this is one of the reasons why the farmers who are deprived of their holdings commit suicide.
(Emphasis supplied by me)"
15. The instant case and the issue raised by the learned counsel for the parties are require to be determined in the light of the aforesaid principles of law.
16. In the Writ Petition the petitioners claim to be the descendent of on Mohammed Ishaq Sahib who was the owner of subject land. However, from the perusal of objections/ representation dated: 15.10.2018 & 45 23.07.2019 at Annexures K & P made by Abdul Rehaman the petitioner no.8, it is seen that, he is claiming that the subject property belonged to Abdul Wasai Ansari, who died issue less as on 03.08.1980 and after his death, his cousin was in possession of the said property and since she refused to give the share, he and his brothers & sisters files a suit in O.S. NO.5220/1992 and that the said suit was dismissed on 24.02.2005 and in RFA NO.670/2005, this court held they were entitled for 3/4th share, hence sought of payment of compensation. Similar is the representation made by other petitioners on 03.12.2018, 27.03.2019 and 20.05.2019 as per Annexures L, M & N respectively.
17. It is further contended that the Abdul Wasai Ansari had not created any interest in favour of any person in respect of the subject property. That the out of 3 acres 20 guntas subject property an extent of 2 acres 30 guntas 46 had been acquired by BDA and award in terms of Annexure-C had been passed by the BDA.
18. A note in Annexure-C reads that "Out of 3 -10 guntas of land notified for acquisition an extent of 0.20 guntas of land is found to be built during inspection of the spot on 26.11.1987". Hence, the award is passed for remaining extent of 2 acre 20 guntas of land which is adjacent to the main road.
19. Thus it is the contention of the petitioners that the 20 guntas of land had been excluded and during the inspection it was found that there existed buildings on the said 20 guntas of land even as in the year 1987.
Therefore, it was contended on behalf of the petitioners that there is no question of any third party acquiring title as sought to be contended by the private respondents in the instant petition. A reference to rejection of application filed by Sri. S.Samiulla, in O.S.No.5220/1992 seeking to implead there as a party defendant on the premise of he 47 having entered into an agreement of sale is also made in support of this contention.
20. Respondents have produced a copy of registered release deed dated 21.11.1945 in terms of which M. Abdul Wasai Ansari had acquired exclusive right in respect of the land in Sy.No.30/3. Respondents have also claimed that said Abdul Wasai Ansari had executed an agreement of sale and power of attorney in favour of said Sri. S.Samiulla.
21. It is necessary to note that name of said S.Samiulla finds mention even in the said award dated 18.02.1988 produced at Annexure-C wherein at page 8 and 9 name of said S.Samiulla has been referred to as a claimant. Further, perusal of Annexure-B a communication issued in the office of Commissioner and Secretary, Housing and Urban Development Department to the Commissioner-BDA would reveal that the said S.Samiulla had made representation for re-allotment of acquired land.48
The said S.Samiulla had indeed filed an application seeking to implead himself as party in the original Suit in O.S.No.5220/1992 which application was rejected by order dated 2.9.1994. Even in the judgment and decree passed in the said O.S.No.5220/1992 on 24.02.2005 while dealing with issue No. 5 the trial court had held in affirmative the said issue by holding that said S.Samiulla had entered into agreement to purchase the share of defendants 1 to 3.
22. Thus, from the above facts, it is clear that the petitioners are aware of the claim being made by said S. Samiulla being agreement holder and power of attorney holder of said Abdul Wasai Ansari at an undisputed point in time. Except filing a suit for partition, the petitioners have not taken any steps with regard to determination of their right, title and interest in respect of their purported undivided share in the subject property that too claiming to be the decedents of late Abdul Wasai Ansari.49
23. As rightly pointed out by learned Senior counsel appearing for the respondents the petitioners who had approached this court after passing of judgment and order in RFA No.607/2005 wherein this court though had held petitioners being entitled for 3/4th share had remitted the matter for re-determination of issue nos. 1 and 7, namely, whether the plaintiffs prove that they are the only heirs and successor of Smt. Amthul Samad? and whether the plaintiffs are entitled to partition and separate possession of their share as prayed for?.
24. The petitioners even before the determination of the said issues had entered into a compromise petition as per Annexure-G, wherein the plaintiffs have been purportedly allotted 50% of the share in the suit schedule property and the defendants have been allotted 40% and 2 others i.e., Mohammed Fahidduni, Makki and Mujahid Barkathula Makki (petitioner No.1 herein) have been allotted 10%. It is not clear in the compromise petition as 50 to in which of the schedule properties they has been allotted the shares as noted above.
25. It is pertinent to refer to contents at paragraphs 11 and 13 of the said compromise memo which are extracted hereunder;
"11. The parties shall put committed and collective effort and to defend their action, to claim, for disbursement compensation amount and to get the benefits in respect of the remaining portion of the land (other than the land acquired by the KIADB). The parties shall approach the competent authorities, forums, courts of law, to safeguard and protect their interest over the remaining portion of the land and further to negotiate among themselves, third parties, legal entities to get maximum benefit, utilization and the above mentioned apportionment of shares holds good in this regard. In the event of collective and committed effort by the parties, the expenses, cost incurred shall be born in the same proportion true to the aforesaid shares".
13. All the parties solemnly affirm, declare concede that they have no objection whatsoever for distribution of compensation by KIADB being the acquisition authority specifically as per the above mutually agreed shares which are irrevocable".
26. The date of the compromise is 28.02.2020. As per the averments made at paragraph 5 and 6 of the writ petition, the petitioners had approached KIAD and had sought for relevant records pertaining to acquisition and 51 the authorities had failed to furnish the same. That taking advantage of COVID-19 crisis officers had mislead the petitioners about passing of the impugned orders or disbursement of the amount. It is further assessed that the petitioners had applied under Right to Information Act and had obtained the information on 31.08.2020 as per Annexure-AB and learnt about the impugned order having been passed and amount having been disbursed.
27. In this context it is also necessary to note that the petitioners had approached this Court immediately after the final notification in W.P.No.7790-98/2019 seeking direction to the respondents 3 and 4 to consider their representations dated:03.12.2018. Co-ordinate Bench of this Court taking note of pendency of the above suit in O.S.No.5220/1992 had passed the following order;
"2.Having regard to the fact that O.S.No.5220/1992 is pending before the City Civil Court, Bengaluru, which is a suit for partition, petitioners who are the defendants in the said suit have sought for further proceedings being stopped by the acquisition authorities - KIADB (Karnataka Industrial Area Development Board) and not to pass any award in the matter. Having regard to the fact that there is a suit for partition filed by the plaintiffs 52 who are also not arrayed as respondents in these petitions and the subject matter of the suit is also the subject matter of acquisition, this Court does not deem it proper to interfere at this stage of the matter.
3. In the circumstances, the writ petitions are disposed of by reserving liberty to the petitioners herein to seek appropriate directions with regard to the compensation amount to be determined by the respondents - authorities by filing an application in O.S.No.5220/1992. It is needless to observe that if any such application is filed by the petitioners herein, the trial Court shall consider the same in accordance with law and pass a speaking order thereon".
28. When the Coordinate Bench of this Court, had disposed of the said writ petition reserving the liberty to the petitioners to seek appropriate directions with regard to compensation amount to be determined by the respondent-authority by filing an application in the said suit in O.S.No.5220/1992 and with a further direction to the trial Court to consider the same in accordance with law and to pass to speaking order thereon as noted above, there is no justification of any nature whatsoever provided by the petitioners for they not opting this course of action. The contentions that COVID-19 Pandemic had kept them under dark also cannot be countenanced as the aforesaid 53 writ petition was disposed of on 08.03.2019, while the petitioners filed their representations as per Annexure-K to S on 05.10.2018, 3.12.2018, 27.03.2019, 28.05.2019, 23.07.2019, 08.08.2019, 30.09.2019 and 08.03.2020. Thus the petitioners instead of filing the applications before the trial Court as observed by this Court went on filing the applications as noted above, and thereafter have filed compromise petition as per Annexure-G and have obtained compromise decree on 28.02.2020. Thus, the petitioners cannot plead that they were prevented from the COVID-19 pandemic in taking effective measures while they have been consistently filing representations even during the COVID-19 period.
29. As the Apex Court has settled the legal proposition that the land acquisition officer has jurisdiction to look into the issues pertaining to title barring complicated issues of title, perusal of the impugned award reveal that the respondent No.6-SLAO apart from taking 54 note of orders, judgment and decree passed in O.S.No.5220/1992, RFA No.670/2005, W.P.Nos.7797- 98/2019 and also taking note of the deeds of sale, revenue records furnished by private respondents has come to the conclusion that the private respondents had established their right over the properties purchased by them. The narration of facts and reasons assigned by the respondent 6- SLAO in the impugned awards cannot be said to be the one without application of mind. There is indeed reference to the details of the objections raised by the petitioners and determination of the same.
30. As already noted above, petitioners who are aware of claim being made by S.Samiulla of he having entered into agreement of sale and obtaining general power of attorney not only from Abdul Wasai Ansari but also from his other legal heirs after his demise, have not taken any steps to challenge the said transactions and establishing their rights. More so, when those issues had 55 come up for consideration in the very suit in O.S.No.5220/1992.
31. Least that the petitioners were expected to do was to seek reference of the matter under Section 18 of the Land Acquisition Act, 1894. That not having been done, the petitioners approaching this Court after lapse of more than one year citing reasons of COVID-19 pandemic under the facts situation narrated hereinabove cannot be accepted.
32. The Division Bench of this Court in its order dated 10.03.2022 passed in W.A.No.1065/2021 at para 11 has held as under;
"11. In the backdrop of aforesaid principles, the facts of this case in hand may be adverted to. It is also pertinent to mention here that the writ petition was filed on or about 20.01.2017, whereas the award was passed on 26.11.2015. Though the petitioners were aware about the acquisition proceedings, yet they waited for the award to be passed and thereafter, filed a writ petition after a period of one year and two months. Thus, the writ petition suffers from delay and laches and therefore, belated challenge to the land acquisition proceedings cannot be entertained. For yet another reason, no relief can be granted to the petitioner as the petitioner has not assailed the award dated 26.11.2015 in the writ petition".56
33. The Apex Court in the case of R.Sethuram and others vs. State of Karnataka and another- (2008) 4 SCC 695 at para 16 and 18 has held as under;
"16. Another important aspect which is required to be noticed by this Court is that the Sewage Treatment Plants cannot be established anywhere and everywhere. The underground drainages have to be linked and vantage point where there is a natural gradient allowing free water flow have to be identified for establishment of wet wells and filtration plants. Therefore, having regard to such a technical requirement, the submission of the learned counsel for the petitioners that any other land could be identified or that government lands could be identified for the establishment of Sewage Treatment Plants, cannot be accepted.
18. Therefore, while rejecting the prayers made by the petitioners in this writ petition, this writ petition stands disposed of permitting the petitioners to file an application before the Special Land Acquisition Officer within a period of 30 days from the date of receipt of a certified copy of this order. As and when the application is filed before the Special Land Acquisition Officer, the Special Land Acquisition Officer shall make a reference to the authority in terms of Section 64 of the Act without going into the question of limitation".
34. As regards the allegation of collusion, fraud and fabrication of documents, as rightly submitted by learned Senior counsel for the KIADB, the stamp papers of the months of July and August, 2019 were submitted by the 57 private respondents in response to the notices dated 26.07.2019 issued by the authorities calling upon them to submit the documents. The plea of pre-dated documents therefore cannot be sustained. That apart, the proceedings initiated by the Lokayukta at the instance of the petitioners have been closed as the matter was found not fit for probe as evidenced by the preliminary scrutiny note dated 14.09.2020 enclosed with endorsement dated 22.09.2020 at Annexure-R10.
35. For the aforesaid analysis and the reasons, more particularly of the inaction on the part of the petitioners in not taking effective measures despite having sufficient opportunity and even as directed by the Co- Ordinate Bench of this Court, cannot be heard to say that the petitioners were not given sufficient opportunity to put forth their case and that the respondents -authorities acted arbitrarily in rejecting their claim.
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36. The petitioners in the above facts and circumstances of the matter, have not made out any grouse warranting interference by this Court with the award passed by respondent No.6-SLAO. Hence, writ petition is dismissed.
The assistance rendered by Mr.Siddiq Hussain Khan Shah, Law Clerk cum Research Assistant is placed on record.
Sd/-
JUDGE RU/SBN