Karnataka High Court
Sri M Devendra vs State Of Karnataka on 2 February, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION No.8944/2016 (LA-BDA)
BETWEEN:
1. Sri M. Devendra
S/o U. Munireddy
Aged about 51 years
R/at. 2451, 17th "E" Cross
9th Main Road
BSK 2nd Stage
Bangalore-70
2. Smt. M. Sathya Reddy
W/o Narasimhareddy
Aged about 53 years
R/at. 2453, 17th "E" Cross
9th Main Road
BSK 2nd Stage
Bangalore-70
3. Sri M. Nagesh Reddy
S/o Late U. Munireddy
Aged about 55 years
R/at. 2454, 17th "E" Cross
9th Main Road
BSK 2nd Stage
Bangalore-70
Petitioners 2 and 3 are represented
by power of Attorney Holder
Mr. Devendra S/o U. Munireddy
...Petitioners
(By Sri Shashikiran Shetty, Senior Counsel for
Sri Lohitaswa Banakar, Advocate)
2
AND:
1. State of Karnataka
Urban Development Department
Represented by its Secretary
Bangalore-1
2. The Commissioner
Bangalore Development Authority
Chowdaiah Road
Kumara Park West
Bangalore-20
3. The Special Land Acquisition Officer
Bangalore Development Authority
Chowdaiah Road
Kumara Park West
Bangalore-20
...Respondents
(By Sri A.C. Balaraj, AGA for R1;
Sri Unnikrishnan M., Advocate for R2 and R3)
This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to:
a) Call for the records from the respondents.
b) Issue a writ of mandamus, directing the respondents not to
enforce the scheme called "Banashankari 5th State" as against
petitioners land bearing Sy.No.62 measuring 1 acre 24 guntas of
land together with 0-6 guntas of karab of Doddkallasandra village,
Uttarahalli Hobli, Bangalore South Taluk, in view of lapsing of
scheme in terms of Section 27 read with Section 36 of the
Bangalore Development Authority Act, 1976, based on the
judgment of Hon'ble Supreme Court in offshore holdings private
limited vs. Bangalore Development Authority, reported in (2011) 3
SCC 139 para-127.
c) Declare that the acquisition proceedings initiated under the
provisions of BDA Act, 1976 for the scheme called "Banashankari
5th State" has lapsed under Section 27 in view of the fact that
there is no vesting of the land and land is free from acquisition.
d) Declare that the present notification is abandoned for the reason
that even after lapse of 32 years, no layout has been formed and
not implemented the scheme within 5 years vide notification
3
bearing No.HUD-127 MNX -94 dated 09.05.1994 vide Annexure-D
and notification bearing No.BDA/SLAO/1/324/1988-89 dated
29.12.1988 vide Annexure-C
e) To declare the acquisition proceedings have lapsed by virtue of
section 24(2) of Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013
coming into force on 2014 or in the alternative to award
compensation in accordance with the provisions of Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013.
This Writ Petition having been heard and reserved on 29.07.2021,
coming on for Pronouncement of Order this day, the Court made the
following:-
ORDER
In this petition petitioners have sought for the following reliefs:
a) Call for the records from the respondents.
b) Issue a writ of mandamus, directing the respondents not to enforce the scheme called "Banashankari 5th State" as against petitioners land bearing Sy.No.62 measuring 1 acre 24 guntas of land together with 0-6 guntas of karab of Doddkallasandra village, Uttarahalli Hobli, Bangalore South Taluk, in view of lapsing of scheme in terms of Section 27 read with Section 36 of the Bangalore Development Authority Act, 1976, based on the judgment of Hon'ble Supreme Court in offshore holdings private limited vs. Bangalore Development Authority, reported in (2011) 3 SCC 139 para-127.
c) Declare that the acquisition proceedings initiated under the provisions of BDA Act, 1976 for the scheme called "Banashankari 5th State" has lapsed under Section 27 in 4 view of the fact that there is no vesting of the land and land is free from acquisition.
d) Declare that the present notification is abandoned for the reason that even after lapse of 32 years, no layout has been formed and not implemented the scheme within 5 years vide notification bearing No.HUD-127 MNX -94 dated 09.05.1994 vide Annexure-D and notification bearing No.BDA/ SLAO/1/324/1988-89 dated 29.12.1988 vide Annexure-C
e) To declare the acquisition proceedings have lapsed by virtue of section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 coming into force on 2014 or in the alternative to award compensation in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
2. The brief facts giving rise to this petition are as that the petitioners claim to be owners in possession of the subject land bearing SY.No.62 measuring 1 acre 24 guntas together with 6 guntas of kharab land situated at Doddakallasandra village, Uttarahalli Hobli, Bangalore South Taluk. It is contended that the land originally belonged to their father in whose name the revenue records were standing and upon his death, the petitioners succeeded to his estate including the subject land. After the death of their father, 5 when the petitioners tried to get the revenue records transferred to their names during September 2013, they learnt that the subject lands had been notified for acquisition for the BDA vide preliminary notification dated 29.12.1988 and final notification dated 09.05.1994 for the purpose of formation of Banashankari V Stage Layout; however, the name of the petitioners' father was not shown in the notifications and no notice of acquisition was served upon him or the petitioners.
3. Petitioners also learnt that their father, along with other land owners had preferred W.P.No.21975/1994 and connected matters before this Court challenging the acquisition and in the said petitions, vide final order dated 27.09.1995, this Court was pleased to quash the notifications and directed the respondents to take steps to acquire the lands in accordance with law.
4. Subsequently, the respondents issued two more final notifications dated 16.09.1997 and 07.10.1999 which were challenged by petitioners and other land owners in W.P.No.37808/1997 and connected matters. By order dated 6 31.08.1998, the aforesaid W.P.37808/1997 filed by the petitioners was dismissed by this court on the ground of delay and laches.
5. Subsequently, petitioners preferred one more writ petition in W.P.No.58734/2013 which was also dismissed on 15.07.2015 by this Court. It is contended that despite all the aforesaid court proceedings, the respondents have not fully, effectively and substantially implemented and executed the scheme for more than a period of five years and consequently the scheme stood lapsed under Section 27 of the BDA Act. It is also contended that the petitioners have always been in possession and enjoyment of the subject land and the respondents have not taken possession of the land from the petitioners as evident from the notification dated 18.08.2009 issued under Section 16 (2) of the Land Acquisition Act, 1894 (for short the 'L.A. Act') which indicates that the subject land is not included in the said notification. It is further contended that by virtue of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, 7 Rehabilitation and Resettlement Act, 2013 (for short the said Act of 2013), the acquisition proceedings have lapsed and deserve to be quashed on this ground also. It is therefore contended that the impugned acquisition proceedings deserve to be quashed.
6. The respondents 2 and 3 - BDA have filed their statement of objections and have contested the petition inter alia contending that having regard to the earlier round of litigation, the present petition is barred by res judicata and that the petitioners are guilty of suppression of material facts which has been noticed by this Court in its order dated 15.07.2015 dismissing W.P.No.58734/2013 by imposing a cost of Rs.20,000/- upon the petitioners. It is submitted that pursuant to the impugned notifications, possession was taken by the respondents on 29.12.1995 and handed over to the Engineering Section for formation of the layout apart from the fact that the award amount of Rs.3,61,769/- in respect of the subject land was deposited by the respondents in LAC No.228/1994-1995 for adjudication under Sections 30 and 31 8 of the L.A. Act. It is therefore contended that there is no merit in any of the allegations and claim put forth in the present petition which is liable to be dismissed with costs.
7. I have heard Sri Shashikiran Shetty, learned Senior Counsel for the petitioners and Sri Unni Krishnan, learned counsel for the BDA and perused the material on record.
8. A perusal of the material on record will indicate that though several contentions have been urged by both sides in support of their respective claims, the earlier proceedings instituted by the petitioners herein would be relevant and germane for disposal of the present petition. In this context, it is relevant to state that in W.P.No.37808/1997 filed by the petitioners, vide final order dated 31.08.1998, this Court dismissed the said petition on the ground of delay and laches; the said petition was filed by the petitioners seeking quashing of the very same impugned acquisition notifications in respect of the subject land; the aforesaid order passed by 9 this Court has attained finality and become conclusive and binding upon the petitioners.
9. Subsequently, by suppressing the earlier rounds of litigation including dismissal of W.P.No.37808/1997 as stated supra, petitioners filed yet another petition in W.P.No.58734/2013; in the said petition also, petitioners challenged the very same impugned preliminary notification dated 29.12.1988 and final notification dated 09.05.1994 and acquisition proceedings pursuant thereto in respect of the subject lands; however, in this petition in W.P.No.58734/2013, petitioners deliberately and intentionally suppressed material facts by not disclosing the earlier rounds of litigation and dismissal of W.P.No.37808/1997 by this court. At the time of hearing, the said facts having been brought to the notice of this Court by the learned counsel for the BDA, this Court proceeded to pass the following order:
"There is substance in the submission of Sri K.Krishna, learned counsel for respondent/Bangalore Development Authority that 1st petitioner suppressed material fact of having instituted W.P.NO.37808/1997 10 before this Court calling in question the very same notification, subject matter of challenge, in relation to 1 acre 30 guntas of land in Sy.No.62 of Doddakallasandra which petition was dismissed by order dated 31st August 1998 along with other connected petitions in the case of D. Hemachandra Sagar and another vs. The State of Karnataka and others.(ILR 1998 KAR 4172).
2. The factum of non disclosure and suppression of a fact in issue is borne out from records of this Court as indicated in the reported opinion which includes the case of the petitioner at paragraph 27. Nothing more need be noticed over the suppression of material facts by the 1st respondent. The acquisition of land belonging to petitioner having attained a finality by virtue of the order of this Court rejecting petitioners' claim to quash the acquisition notifications, first petitioner is guilty of suppressio veri suggestio falsi. Apparently, action of the 1st petitioner tantamount to an offence under the Indian Penal Code. It is obvious that the 1st petitioner having approached the Court by suppressing material fact, must suffer the consequences. Petition is accordingly dismissed with cost quantified at `20,000/- payable by the petitioners to the 2nd respondent/ Commissioner, Bangalore Development Authority.11
I.A.No.1/2015 is dismissed as having become unnecessary."
10. A perusal of the aforesaid orders passed by this Court will clearly indicate that this Court has come down heavily upon the petitioners for deliberately suppressing material facts and has come to the conclusion that the petitioners are not entitled to any relief including the challenge to the impugned notifications. The said order passed by this Court in W.P.No.58734/2013 dated 15.07.2015 has also attained finality and become conclusive and binding upon the petitioners.
11. After having been unsuccessful in their challenge to the impugned notifications, petitioners have once again preferred the present petition putting forth exactly identical grounds and contentions which are clearly barred by the principles of res judicata, in particular, explanation No.V to Section 11 CPC as well as by the principles of constructive res judicata as enjoined in explanation-IV to Section 11 CPC. When this Court has declined to entertain W.P.No.58734/2013 12 on the sole ground that the petitioners are guilty of suppression of material facts, the question of entertaining the present petition wherein the petitioners have put forth exactly similar and identical contentions which were urged by them earlier does not arise and consequently, I am of the considered opinion that the petitioners are not entitled to any relief in the present petition also.
12. The main contention urged on behalf of the petitioners is that possession of the subject land was not taken by the respondents 1 to 3 who had also not deposited / paid the award amount and consequently, since the twin / two-fold requirement contemplated in Section 24(2) of the said Act of 2013 had not been satisfied, the entire acquisition proceedings stood lapsed. This contention urged by the petitioners regarding lapsing of the acquisition under Section 24(2) of the said Act of 2013, is clearly misconceived and devoid of merit in view of the well settled position of law that the said Act of 2013, in particular, Section 24(2) is not applicable to acquisition under the BDA Act, as held by the 13 Division Bench of this Court in the cases of (i) L. Rama Reddy vs. State of Karnataka & Others -
W.A.No.1415/2016 dated 01.12.2020; (ii) BDA & Another vs. Vishwanatha Reddy & Others - W.A.No.9476/2016 dated 02.03.2021 and (iii) BDA vs. L. Chandrashekar - W.A.No.946/2016 dated 30.06.2021.
13. Under these circumstances, it is clear that since Section 24(2) of the said Act of 2013 is not applicable to the acquisition of the subject land under the BDA Act, the primary/ main contention / ground of attack to the impugned notifications is clearly devoid of merit and the same is liable to be rejected.
14. In view of the aforesaid discussion, I do not find any merit in the petition and the same is hereby dismissed. All pending applications, if any, do not survive for consideration and the same are also disposed of.
SD/-
JUDGE swk