Karnataka High Court
Sri V Srinivasa Murthy vs State Of Karnataka on 8 April, 2024
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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WP No. 10331 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
WRIT PETITION NO. 10331 OF 2013 (LA-BDA)
BETWEEN:
1. SRI V. SRINIVASA MURTHY,
AGED ABOUT 89 YEARS,
S/O LATE VASANTHACHAR,
R/AT NO.109 VALLABHANILAYA,
DODDALASANDRA, 2ND STAGE,
BANGALORE-560 062.
1(a) SMT.LAKSHMI NARASAMMA,
W/O V. SRINIVASMURTHY,
AGED ABOUT 89 YEARS,
1(b) SRI SREEVATHSA
S/O LATE V. SRINIVASMURTHY AMENDED AS PER COURT
AGED ABOUT 57 YEARS, ORDER DATED 23.03.2018
BOTH ARE R/A 109, VALLABHANILAYA,
DODDALASANDRA, 2ND STAGE,
BANGALORE-560 062.
CHANDRASHEKAR
LAXMAN
KATTIMANI
2. SRI B. SIDDAPPA,
Digitally signed by
CHANDRASHEKAR
AGED ABOUT 70 YEARS,
LAXMAN KATTIMANI
Location: HIGH COURT
OF KARNATAKA
S/O LATE BETTE GOWDA,
DHARWAD BENCH
Date: 2024.04.10
10:25:59 +0530
R/AT NO.46, GUBBALALA VILLAGE,
SUBRAMANYAPURA POST,
UTTARAHALLI HOBLI,
BANGALORE-560 061.
3. SMT.AMMAYAMMA,
W/O LATE G. KRISHNAPPA,
SINCE DECEASED BY HER LRs
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WP No. 10331 of 2013
3(a) SMT.GANGAMMA K.,
W/O PUTTA SWAMAYYA T.G.,
D/O AMMAYAMMA,
AGED ABOUT 53 YEARS,
R/A NO.63/1, KENGERI ROAD,
TAVAREKERE, BENGALURU-562 130.
3(b) SMT.KOMALA K.,
D/O LATE AMMAYAMMA,
W/O SHIVAKUMAR,
AGED ABOUT 51 YEARS,
R/A NO.69, GATE RANGAMMA LAYOUT,
SHANTHINAGAR, ACHARYA COLLEGE ROAD,
CHIKKABANAVARA POST,
BENGALURU - 560 090.
3(c) SRI K. MUNIRAJU,
S/O LATE AMMAYAMMA,
AGED ABOUT 49 YEARS,
R/A NO.15, GUBBALALA,
SUBRAMANYAPURA POST,
BENGALURU - 560 061.
3(d) SMT.SARALADEVI,
W/O H.C.SRINIVAS,
D/O LATE AMMAYAMMA,
AGED ABOUT 47 YEARS,
R/A 'MADDURAMMA NILAYA',
SIMHADRI LAYOUT, MASEEDI ROAD,
UTTARAHALLI, SUBRAMANYAPURA POST,
BENGALURU - 560 061.
3(e) SMT. MUDHUKUMARI K.,
W/O RAJANNA,
D/O LATE AMMAYAMMA,
AGED ABOUT 45 YEARS,
R/A HIPPE ANJANEYA TEMPLE ROAD,
NELAMANGALA TOWN, TUMKUR ROAD,
NELAMANGALA.
3(f) SRI MAHESH KUMAR K.,
S/O LATE AMMAYAMMA,
AGED ABOUT 43 YEARS,
R/A NO.15, SUBRAMANYAPURA POST,
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WP No. 10331 of 2013
GUBBALALA, BENGALURU - 560 061.
3(g) SMT. MEENARANI K., W/O H.K. LOKESH,
D/O LATE AMMAYAMMA, AMENDED AS PER COURT
AGED ABOUT 40 YEARS, ORDER DATED 19.04.2021
R/AT NO.60/1, 1ST CROSS,
SHAKAMBARI NAGARA, SARAKKI,
BENGALURU - 560 076.
4. SRI B.M. NAGARAJU,
AGED ABOUT 46 YEARS,
S/O LATE MUNIYAPPA,
5. SRI CHETHAN,
AGED ABOUT 19 YEARS,
S/O SRI B.M. NAGARAJU,
6. SRI B.M. CHANDRASHEKAR,
AGED ABOUT 37 YEARS,
S/O LATE N.MUNIYAPPA,
7. SRI B.M. MURTHY,
AGED ABOUT 34 YEARS,
S/O LATE N.MUNIYAPPA,
ALL ARE R/AT VAJARAHALLI VILLAGE,
UTTARAHALLI HOBLI,
BENGALURU SOUTH TALUK,
PETITIONERS NO.4 TO 7 ARE REP. BY THEIR
REGISTERED POWER OF ATTORNEY HOLDER
SRI B. MUNIRAJU, AGED ABOUT 50 YEARS,
S/O LATE BYRAPPA, R/AT NO. 38/1,
21ST MAIN, 14TH CROSS,
PADMANABHA NAGAR,
BENGALURU-560 070.
...PETITIONERS
[BY SRI K. SUMAN, SR. COUNSEL FOR
SRI SIDDARTH SUMAN, ADVOCATE FOR P2, P4 TO P7;
SRI DESHARAJ, ADVOCATE FOR LRs OF DECEASED P1;
SRI H.R. ANANTH KRISHNAMURTHY, ADVOCATE FOR LRs OF P3]
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WP No. 10331 of 2013
AND:
1. STATE OF KARNATAKA,
BY ITS PRINCIPAL SECRETARY,
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA,
VIDHANA VEEDHI, BANGALORE.
2. THE COMMISSIONER,
BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
K.P WEST, BANGALORE-560 020.
3. THE SPECIAL LAND ACQUISITION OFFICER,
BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
K.P. WEST, BANGALORE560 020.
4. THE DEPUTY COMMISSIONER,
(LAND ACQUISITION),
BANGALORE DEVELOPMENT AUTHORITY,
T. CHOWDAIAH ROAD,
K.P WEST, BANGALORE-560 020.
...RESPONDENTS
[BY SRI KEMPANNA, ADDL. ADVOCATE GENERAL FOR
SRI HANUMANTHARAYA LAGALI, AGA FOR R1;
SRI B.S. SACHIN, ADVOCATE FOR R2 & R4]
THIS WRIT PETITION IS FILED UNDER THE ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT
THE ACQUISITION PROCEEDINGS IN RESPECT OF THE LANDS OF
THE PETITIONERS i.e., THE PETITION SCHEDULE LANDS, UNDER
THE PRELIMINARY NOTIFICATION DATED 7.11.2002 AS PUBLISHED
IN THE KARNATAKA GAZETTE DATED 21.11.2002 i.e. ANNEXURE-B
AS ILLEGAL AND VOID AB-INITIO. DECLARE THAT THE BDA /
RESPONDENTS HAVE NO AUTHORITY IN RESPECT OF THE LANDS OF
THE PETITIONERS i.e. THE PETITION SCHEDULE LANDS, BE IT TO
ENTER UPON THE SAME OR OTHERWISE INTERFERE WITH THE
PETITIONERS' PEACEFUL POSSESSION AND ENJOYMENT OF THE
PETITION SCHEDULE LANDS / PROPERTY ON THE BASIS OF THE
FINAL NOTIFICATION DATED 9.9.2003 PUBLISHED IN THE
KARNATAKA GAZETTE ON 10.9.2002 i.e. ANNEXURE-C OR ON THE
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BASIS OF THE NOTIFICATION ISSUED UNDER SECTION 16[2] OF
THE LAND ACQUISITION ACT DATED 29.5.2007 i.e. ANNEXURE-G ON
ACCOUNT OF THE LAPSING OF THE SCHEME AND CONSEQUENTLY
THESE NOTIFICATIONS BEING NULL AND VOID AB-INITIO AND
WHOLLY ILLEGAL AND ETC.,
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 15.11.2023, THEREAFTER FOR FURTHER HEARING ON
04.04.2024 AND ON THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
This writ petition is filed for following reliefs:
"i) to declare that the acquisition proceedings in respect of the lands of the petitioners i.e., the petition schedule lands, under the preliminary notification bearing No.BDA/LAQ/A-
4PR:194/2002-03 dated 07.11.2002 as published in the Karnataka Gazette dated 21.11.2002 i.e. Annexure-B as illegal and void ab-initio.
ii) declare that the BDA/Respondents have no authority in respect of the lands of the petitioners i.e. the petition schedule lands, be it to enter upon the same or otherwise interfere with the petitioners' peaceful possession and enjoyment of the petition schedule lands / property on the basis of the final notification No.UDD:750:LAQ:2003 dated 09.09.2003 published in the Karnataka Gazette on 10.09.2002 i.e. Annexure-C or on the basis of the notification issued under Section 16[2] of the Land Acquisition Act bearing No.BOA/SLAO/A5/PR/45/2006-07 dated -6- NC: 2024:KHC:14463 WP No. 10331 of 2013 29.05.2007 i.e. Annexure-G on account of the lapsing of the scheme and consequently these notifications being null and void ab-initio and wholly illegal and etc."
2. Sri K. Suman, learned Senior Counsel appearing for Sri Siddarth Suman, advocate for petitioners no.2 and 4 to 7, Sri Desharaj, advocate for legal representatives of petitioners no.1 (a) and (b) and Sri H.R. Ananth Krishnamurthy, advocate for legal representatives of petitioners no.3 (a) to (g) submitted that petitioners were owners in possession of lands as follows:
Sl. Petitioners Particulars of Land no.
1. Petitioner no.1 was Sri V. 16 guntas in Sy.no.37 of Srinivasamurthy, Gubbalala village Petitioners (a) and (b) being wife and son
2. Petitioner no.2 is B. 6 guntas in Sy.no.36/2 of Siddappa Gubbalala village
3. Petitioner no.3 is Late 17 guntas in Sy.no.36/1 of Smt.Ammayamma W/o Gubbalala village Late G. Krishnappa, petitioners no.3 (a) and
(g) are his children
4. Petitioners no.4, 6 and 7 23 guntas in Sy.no.33/1 and are children of Late Sri 13 guntas in Sy.no.33/2 of B.M.Muniyappa and Gubbalala village petitioner no.5 is son of petitioner no.4 -7- NC: 2024:KHC:14463 WP No. 10331 of 2013
3. It was submitted, names of petitioners or their ancestors were reflected as khatedars/anubhavdars in respect of these lands. They were aggrieved by entries in present revenue records standing in name of Bangalore Development Authority (for short 'BDA') and were seeking for declaration that acquisition proceedings in respect of above properties, in pursuance of preliminary notification dated 07.11.2002 (Annexure-B) as illegal and void ab initio; that BDA has no authority to enter upon petition lands or interfere with petitioners peaceful possession and enjoyment, on basis of final notification dated 10.09.2002 at Annexure-C and notification issued under Section 16 (2) of Land Acquisition Act, 1894 (for short 'LA Act') dated 29.05.2007 at Annexure-G, due to non- implementation within statutory limit of 5 years as per Section 27 of BDA Act, etc.
4. It was submitted that under preliminary notification dated 07.11.2002 total extent of 1532 acres and 17 guntas comprised in 8 villages namely Vajrahalli, Hosahalli, Uttarahalli Manevartekaval, Bada Manevartekaval, Raghuvanahalli, -8- NC: 2024:KHC:14463 WP No. 10331 of 2013 Talaghattapura, Turahalli and Gubbalala for formation of "Further Extension of Banashankari VI Phase by linking existing VI Phase Layout through Kanakapura - Bangalore Main Road", including 367 acres 22 guntas of lands in Gubbalala village. However, final notification issued on 04.09.2003 was for only 750 acres including only 142 acres and 1 guntas of Gubbalala village, while notification under Section 16 (2) of LA Act was issued only for 395 acres 37 guntas including only 39 acres 10 guntas of Gubbalala village. Thus there was enormous reduction from extent approved for scheme to extent ultimately taken possession of.
5. It was submitted, BDA admitted in its statement of objections that in respect of 657 acres 15 guntas of lands covered under preliminary notification, it had passed resolution permitting land owners to pay betterment charges and left out such lands from final notification. It was contended, petitioners' lands were discriminated against while identifying lands for being left out of acquisition, by receiving betterment charges.
6. It was submitted that notification under Section 16 (2) of LA Act, were defective on ground that mahazars drawn for -9- NC: 2024:KHC:14463 WP No. 10331 of 2013 taking possession did not contain any particulars of pancha witnesses and therefore illegal as per decisions of this Court and Apex Court. It was submitted that procedure under Section 16 of LA Act i.e. taking of physical possession was not complied and even manner of taking possession was defective as mahazar was drawn by Revenue Inspector, whereas LA Act empowered only District Collector to take possession.
7. It was also submitted that by indiscriminate and large scale de-notification as per notification at Annexure-E (colly), BDA had rendered Scheme as unviable and violative of power of acquisition of lands by BDA. In support of his submission, learned Senior Counsel relied upon following decision:
i. Bangalore Development Authority and Anr. v/s Sri Srinivasamurthy and Anr., reported in ILR 2020 KAR 4625 (DB) for proposition that failure to take over possession and exclusion of substantial portion of land from acquisition resulted in lapsing of acquisition in view of Section 27 of BDA Act.
ii. S.M.Kannaiah v/s State of Karnataka,
reported in ILR 2011 KAR 795 for
proposition that Section 16 (1) of LA Act,
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NC: 2024:KHC:14463 WP No. 10331 of 2013 permitted taking of possession by any officer subordinate to Deputy Commissioner, but on specific authorization and reporting of compliance back to Deputy Commissioner. And in case of dispute, records should disclose above facts to satisfaction of Court.
iii. Banda Development Authority, Banda v/s Moti Lal Agarwal and Ors., reported in 2011 (5) SCC 394, for principles laid down about manner of taking possession :
"37. The principles which can be culled out from the above noted judgments are:
(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice
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NC: 2024:KHC:14463 WP No. 10331 of 2013 to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.
iv. Dr.A. Parthasarathi and Ors. v/s State of Karnataka, reported in ILR 2017 KAR 3489
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NC: 2024:KHC:14463 WP No. 10331 of 2013 (DB), for proposition that possession of land notified for acquisition has to be taken in proper and valid manner. Absence of independent witnesses signing mahazar along with their names and addresses to show identity of such witnesses and drawing of mahazar in mechanical manner on cyclostyled form would render authenticity extremely doubtful.
v. State of Karnataka v/s Gokula Education Foundation, reported in 2005 (6) KLJ 429 (DB) for proposition that actual physical possession continuing with petitioner substantiated by construction of buildings were sufficient to establish that possession was not taken despite issuance of notification under Section 16(2) of LA Act.
vi. Magnum Promoters (P) Ltd. v. Union of India, reported in (2015) 3 SCC 327, for proposition that prevention from taking possession due to interim order granted by Court would not save acquisition from invocation of deemed lapsing under Section 24 (2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
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NC: 2024:KHC:14463 WP No. 10331 of 2013 vii. Offshore Holdings (P) Ltd. v/s Bangalore Development Authority, reported in (2011) 3 SCC 139, for proposition that BDA Act itself provided for adjudication regarding claims about levy of betterment tax under Section 20 of BDA Act.
viii. Hari Ram v/s State of Haryana, reported in (2010) 3 SCC 621 for proposition that right of similarly situated persons for consideration of their claims for de-notification where similar lands were de-notified has been recognised. And classification on basis of nature of construction for consideration for de- notification was held unsustainable.
ix. Usha Stud & Agricultural Farms (P) Ltd.
v/s State of Haryana, reported in (2013) 4 SCC 210 for proposition that judicial review of hostile discrimination in matters of consideration for de-notification, was available.
x. V.A. Narasimha Reddy v/s Govt. of Karnataka, reported in 2012 SCC OnLine Kar 5254 for proposition that this Court had already observed that there is pick and choose method adopted by BDA while considering for de-notification of lands proposed to be
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acquired for formation of Extension of
Banashankari VI Stage. And also for
proposition that due to enormous reduction in extent of lands notified under preliminary notification and extent which was actually acquired led to conclusion that very purpose of formation of layout had frustrated for quashing acquisition.
xi. In H.Eraiah V/s State of Karnataka in W.P no.22025/2012 D.D on 03.01.2024 and R Mallaiah V/s. State of Karnataka in W.P no.53718-719/2013 D.D on 10.04.2014 in respect of acquisition for formation of Banashankari VI stage, it was held that acquisition had lapsed as Mahazar indicating taking of possession was drawn on printed form, contained only signature of witnesses without any details, was un-acceptable and failure to take actual physical possession had led to lapsing of Scheme under Section 27 of BDA Act.
xii. R. Adikesavulu Naidu v/s State of Karnataka, reported in 2011 SCC OnLine Kar 197 for laying down propositions with regard to Section 27 of BDA Act:
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NC: 2024:KHC:14463 WP No. 10331 of 2013 "140. In the light of above discussion, answers to the questions as raised above, are as under:
Question No 1: A scheme proposed by BDA if is not substantially implemented within a period of five years as is mandated under Section 27 of the BDA Act and has lapsed, there is no question of Court permitting further implementation of the scheme, if it is to the detriment of any person and such a person has sought for relief before Court; and Question No 2: When once the scheme lapsed as per the provisions of Section 27 of the BDA Act, there cannot be any further proceedings for acquisition either, and if the subject land sought to be acquired had not vested in the State Government before lapsing of the scheme, to the extent of the lands not vested in the State Government before the lapsing of the scheme, even the acquisition proceedings lapse, as the acquisition was only for the purpose of implementation of the scheme and to the extent of land not yet vested in the State Government, the scheme having lapsed, there is no possibility of the implementation of the scheme thereafter."
xiii. Gautam Kamat Hotels (P) Ltd. v.
Bangalore Development Authority,
reported in 2012 SCC OnLine Kar 8695 for proposition that drawing up of mahazar in
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NC: 2024:KHC:14463 WP No. 10331 of 2013 cyclostyled form would not substantiate taking up possession and utilisation of only 12 Acres of land out of total extent notified 241 Acres 20 guntas itself indicated failure to implement scheme substantially.
8. On other hand, Sri Hanumanthraya Lagali, learned Additional Government Advocate appearing for respondent no.1, and Sri B.S. Sachin learned counsel appearing for respondent no.2 to 4, opposed writ petition.
9. Sri B.S. Sachin, learned counsel for BDA, submitted that writ petition was liable to be dismissed on ground of res-
judicata, constructive res-judicata, estoppel and acquiescence. It was submitted that in present writ petitions, petitioners were seeking for declaration about acquisition being void ab-initio and also for declaration that acquisition by BDA had lapsed in view of Section 27 of BDA Act. It was submitted that said grounds were already urged and considered in earlier writ petition or deemed to have been considered and rejected. It was submitted that petitioners had earlier filed W.P.no.2362/2004 challenging acquisition notifications. It was submitted that W.P.no.2362/2004 was connected with
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NC: 2024:KHC:14463 WP No. 10331 of 2013 W.P.no.44949/2003 and other connected matters and disposed of on 06.06.2006 upholding acquisition, but by holding that owners of non-converted sites were held entitled for allotment of a site measuring 30' X 40' each on priority basis, in case there were no rival claimants etc. And owners of converted sites who were seeking for dropping of their lands from acquisition on ground that it was situated in (a) Greenbelt area,
(b) totally built-up, (c) converted for non-agricultural use, (d) garden or recognized nursery lands, (e) sites on which hospitals, educational institutions or factories were built and also those who were not served with notice of acquisition and were in doubt about inclusion of their lands in acquisition notifications were permitted to make application seeking exclusion from acquisition. Three months time was granted for consideration and until consideration their possession was protected. Therefore only relief granted to petitioners was to seek for exclusion of their lands from acquisition.
10. It was submitted, insofar as parties herein, said order attained finality. In W.A.no.1165/2006 filed by parties in connected matter was disposed of on 08.08.2007 directing BDA
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NC: 2024:KHC:14463 WP No. 10331 of 2013 to consider application for de-notification following ratio in Hari Ram and Anr. v/s State of Haryana and Ors., reported in (2010) 3 SCC 621. It was submitted that after disposal of writ petition/appeal, petitioners did not file application either for allotment of alternative site or for deletion of their lands from acquisition. And though G. Krishnappa claimed to have submitted representation dated 08.10.2003 for deletion of his lands from acquisition, same was in fact objections to final notification.
11. It was submitted that awards were passed on 12.12.2003 in respect of Sy.nos.33/1 and 33/2, in respect of Sy.nos.35/1, 35/2A, 36/1, 36/2 on 29.12.2003, and in respect of Sy.no.37 on 04.12.2003 respectively. Thereafter, SLAO had issued notices on 30.12.2003 and 08.12.2003 under Section 12 (2) of LA Act, calling upon owners of land to hand over possession and on 14.01.2004 and 16.12.2004 respectively, possession of petitioners land was taken by drawing mahazar and publishing notification under Section 16 (2) of LA Act on 29.05.2007. It was submitted that BDA had also deposited award amount before Civil Court on 04.02.2005. Thereafter, on 02.01.2013 revenue entries were mutated in name of BDA.
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12. It was submitted though this Court on 25.06.2013 granted interim order directing maintenance of status-quo, issuance of notification under Section 16 (2) of LA Act had presumptive value and was valid proof of taking possession of acquired land. And as petitioners were questioning it after enormous delay of several years, writ petitions were liable to be dismissed on ground of delay and laches alone.
13. It was submitted, insofar as land bearing Sy.no.35/1, notified khatedar was one Sri G.V.Harsha, while in respect of Sy.no.35/2A it was Sri M.Jayarama, who did not challenge acquisition notifications, but writ petitions are filed by others, who have no locus-standi. Likewise, G. Krishnappa, husband of petitioner no.3 namely Smt.Ammayamma was owner of land bearing Sy.no.36/1. He had executed Gift Deed on 21.10.2002 gifting 3 guntas to each of his five daughters and leaving 2 guntas for purposes of road, even prior to issuance of preliminary notification on 07.11.2002. Therefore, G. Krishnappa or his wife had no subsisting interest in land acquired. Hence, their writ petitions were liable to be dismissed.
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14. It was submitted, in earlier round of litigation itself this Court noted that BDA had taken possession of 580 acres 18 guntas out of total extent of 750 acres and handed over same to Engineering Section and BDA had taken up developmental works and formed layout. Therefore, petitioners challenge on ground of Section 27 of BDA Act, was wholly misconceived.
15. It was submitted, though BDA had initially sought to acquire extent of 1532 acres for scheme after deleting more than 50% from original scheme, State Government modified scheme by taking note of representations of land owners and proceeded to confirm acquisition in respect of 750 acres by overruling objections against acquisition. It was submitted that as per ratio in S.Hareesh and Ors. v/s State of Karnataka and Ors., in W.P.no.15967-69/2017, disposed of on 27.04.2018, it is held that two conditions must be established for lapse of scheme: firstly, there must be failure to execute scheme i.e. dereliction of statutory duties and not mere delay in execution of scheme. Secondly, substantial completion would depend on facts of each case. Filing of successive writ petitions
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NC: 2024:KHC:14463 WP No. 10331 of 2013 and ensuing delay in their disposal would have to be considered. It was submitted that unless it was established with proper pleadings that BDA had failed to execute scheme substantially even though it was in a position to implement it. Petitioners have failed to establish case for invocation of Section 27 of BDA Act.
16. Insofar as taking of possession, it was submitted that Hon'ble Supreme Court in Banda Development Authority's case (supra), had held that possession of acquired land could be taken only after passing of award. It has upheld taking of possession by drawing mahazar. It was pointed out that in Dr.Parthasarthy's case (supra), this Court had noted that no independent witnesses has signed mahazar and same was done in mechanical manner and cyclostyled form. Likewise, in case of Gokula Education Foundation's case (supra), it was noted that mahazar dated 31.08.1991 was found only in BDA file. It was submitted that decision in Magnum Promoters's case (supra), was overruled in Indore Development Authority v/s Manoharlal and Ors., reported in 2020 (8) SCC 129, wherein drawing up of mahazar for taking possession of large
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NC: 2024:KHC:14463 WP No. 10331 of 2013 tract of lands was upheld. It was submitted that ratio in Offshore Holding Pvt. Ltd.'s case (supra), was basically about non-application of limitation under Section 11-A of LA Act to acquisition under BDA Act. It was submitted that since petitioners had neither filed applications for de-notification of their lands nor were seeking any relief in that regard, ratio in Hari Ram's case (supra), would not be of much assistance to petitioners. Likewise, decision in M/s.Usha Stud and Agricultural Farm's case (supra), was mainly on hostile discrimination. Insofar as judgment in B.A. Narasimha Reddy's case (supra), it was submitted that BDA had approached Hon'ble Supreme Court in SLP(C).no.26009/2018 and same was pending consideration. It was submitted that even against decision in R. Adhikeshavulu Naidu's case (supra), BDA had preferred SLP(C) no.23405/2023 before Hon'ble Supreme Court. Similarly, against decision in Gautham Kamath Hotel's case (supra), BDA had preferred SLP(C) no.15283/2020 and same was pending.
17. It was submitted that writ petitions were also liable to be dismissed on ground of delay and laches, as final notification
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NC: 2024:KHC:14463 WP No. 10331 of 2013 of acquisition was issued on 10.09.2003 and period of five years stipulated in Section 27 of BDA Act would end in year 2008, whereas present writ petition was filed in year 2013 i.e. ten years from date of issuance of final notification.
18. Insofar as substantial implementation, it was submitted that final notification was issued in respect of 750 acres of land, of which 518 acres 18 guntas possession was taken and total 5991 sites were formed. It was submitted that BDA had already allotted 4983 sites. This would indicate that scheme was substantially implemented. Insofar as reliance placed on decision in H. Eraiah's case (supra), it was submitted that Division Bench of this Court in W.A.nos.1411- 1431/2015 Commissioner v/s K.S. Sundaram and Ors., disposed of on 18.11.2019 had held that petitioners' land cannot be taken as unit for consideration whether there was substantial implementation of scheme. It has to be examined with regard to entire scheme as a whole. Therefore, ratio in H. Eraiah's case (supra), would not apply. Reliance was also placed on decisions in case of M Maridev & Ors. v/s State of Karnataka & Ors. reported in 2009 SCC OnLine Kar.219; Krishnamurthy v/s BDA reported in ILR 1996 Kar.1258
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NC: 2024:KHC:14463 WP No. 10331 of 2013 and Bangalore Development Authority v/s H.S.Hanumanthappa, reported in ILR 1996 Kar.642.
19. In reply, learned Senior Counsel for petitioners, submitted that lands were already developed by forming layout namely Raghavendra layout. It was submitted that in para no.5 of statement of objections filed on 29.07.2013, BDA had accepted that as per notification dated 12.09.2003, land owners were permitted to pay betterment charges in respect of Sy.no.30/3, 30/4, 31, 32, and 35/2B of Gubbalala village. It was submitted as per Annexure-F - Survey sketch and report and Google-Earth printout, petitioners land also had several constructions in existence. Therefore, similar treatment ought to have been afforded permitting petitioners to pay betterment charges and retain their lands.
20. It was also contended that though, BDA claimed to have formed layout, laid sites, no permission or approval of such layout by BMRDA produced. Insofar as contention of petition suffering from delay and laches, it was submitted earlier writ petitions were filed challenging acquisition notification. Though, they were dismissed, present writ
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NC: 2024:KHC:14463 WP No. 10331 of 2013 petitions filed was on cause of action that due to non- implementation of scheme, it had lapsed as per Section 27 of BDA Act. Cause of action for present writ petition would arise only after lapse of more than five years and thereafter it would be a continuous cause of action. As such, there was no question of delay and laches.
21. Cause of action in earlier writ petition and present writ petition being distinct, bar on ground of principles of res judicata would not apply. It was submitted this Court in Goutam Kamath's case (supra), difference insofar as cause of action challenging acquisition notifications being different from cause of action seeking for declaration about scheme having lapsed.
22. It was further submitted that observations in para no.11 of order in W.P.no.44949/2003 and connected matters disposed of on 06.06.2006 and directions issued would substantiate petitioners' contentions about hostile discrimination.
23. It was submitted mahazars produced at Annexure-H (colly), indicate that they are not in compliance with Section 16
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NC: 2024:KHC:14463 WP No. 10331 of 2013 (2) of LA Act. It was submitted, they are drawn by revenue inspector, who would not be a competent authority for taking possession. In fact, panchanama/mahazar drawn merely contains signatures without even mentioning particulars of names and addresses of witnesses, giving impression that they were not drawn at spot, but drawn in office, which would not meet requirements of valid act for taking possession. Consequently, claim of respondent-BDA about substantial implementation would crumble down.
24. Heard learned counsel and perused writ petition.
25. From above, it is seen that these writ petitions are filed for declaration against respondent-BDA that acquisition proceedings initiated by issuance of preliminary and final notifications at Annexures-B & C had lapsed due to non- implementation of scheme within five years as required under Section 27 of BDA Act and also for declaration and that notification under Section 16 (2) of LA Act as per Annexure-G was not valid, as it was based on nebulous mahazar at Annexure-H (colly). Petitioners also allege hostile discrimination by BDA in not permitting petitioners to retain their properties
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NC: 2024:KHC:14463 WP No. 10331 of 2013 by paying betterment taxes, while permitting other similarly situated persons.
26. On other hand, respondent - BDA contends that reliefs sought are in-effect assail land acquisition, which would be barred by res judicata and constructive res judicata, as petitioners earlier challenge against land acquisition was dismissed. Observations by this Court while dismissing similar challenge against acquisition in respect of Banashankari VI stage Extension, that there was substantial development would preclude challenge on similar ground in this petition. Contentions about suppression of material fact i.e. dismissal of writ petition filed by Sri G Krishnappa, and lack of subsisting interest (locus-standi) due to alienation of property by Sri G Krishnappa, prior to issuance of preliminary notification are also employed, and lastly, that writ petition was belated.
27. From above, main question that would arise for consideration herein would be, whether petitioners have locus- standi or subsisting interest to maintain writ petitions, present petitions are barred by res judicata or constructive res judicata and whether taking of possession by BDA by drawing mahazars
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NC: 2024:KHC:14463 WP No. 10331 of 2013 at Annexure-H (colly) would be lawful and whether petition suffers from delay and laches.
I. Locus-standi:
28. Said ground is based on claim that notified khatedar of Sy.no.35/1 was Sri G.V.Harsha and Sri M.Jayarama in respect of Sy.no.35/2A, who had not challenged acquisition. Therefore inclusion of lands in Sy.no.35/1 and Sy.no.35/2A in petition schedule would be erroneous.
29. Likewise, Smt.Ammayamma, wife of Sri G.Krishnappa, was owner of land bearing Sy.no.36/1. Though, it is alleged that G. Krishnappa, had executed Gift Deed on 21.10.2002 gifting 3 guntas to each of his five daughters and giving 2 guntas for purposes of road, prior to preliminary notification on 07.11.2002. Therefore, Sri G. Krishnappa or his wife had no subsisting interest in land acquired. But with death of Smt.Ammayamma, during pendency of writ petition and daughters coming on record, said objection would no longer survive.
II. 'Res judicata' and 'constructive res judicata':
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NC: 2024:KHC:14463 WP No. 10331 of 2013
30. Said contention is based on findings in W.P.no.2362/2004 filed by petitioners herein (i.e. in W.P.no.44949/2003 and connected cases), challenging acquisition notifications along with connected matters were disposed of on 06.06.2006 upholding acquisition, but with observations, permitting petitioners to file applications for allotment of alternative site and for deletion/de-notification respectively. Admittedly, no applications were filed by petitioners.
31. Admittedly, prayer no.1 is for declaration that acquisition proceedings initiated under Preliminary Notification dated 07.11.2002 gazetted on 27.11.2002 (Annexure-B) as null and void; insofar as petitioners' lands and prayer no.2 is for declaration that BDA or its officials etc. had no authority to enter upon petitioners' lands or disturb peaceful possession on basis of the Final Notification dated 09.09.2003 gazetted on 10.09.2003 (Annexure-C) and Notification dated 29.05.2007 issued under Section 16 (2) of BDA Act (Annexure-G) on account of lapsing of scheme and consequently these notifications as null and void and wholly illegal etc.
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32. Admittedly, declaration sought referring to acquisition notifications is only in context of prayer for declaration about lapsing of scheme. Even contentions urged about invalidity of mahazars were as part of prayer for declaration about lapsing of scheme. Since there is no direct challenge of acquisition, rejection of earlier writ petition challenging acquisition notifications would not bar seeking declaration as above. Thus, it is held that relief sought referring to acquisition notifications otherwise than in context of Section 27 of BDA Act, would be barred by res-judicata/constructive res-judicata, but prayer sought in context of Section 27 of BDA Act, would not face such bar and petition would be maintainable.
III. Section 27 of BDA Act:
33. In order to substantiate said contention, petitioners rely on decision in case of Srinivasa Murthy's case (supra), wherein Division Bench of this Court held as under:
"20. In our view, the Learned Single Judge has carefully considered the aforesaid facts and has rightly come to the conclusion that the respondent nos.2 and 3 have failed to implement the Scheme within the time allowed and therefore, declared that the Scheme of formation of Banashankari V Stage in so far as the land of the petitioner is concerned has lapsed. The Learned Single Judge also held that in view of the fact that the
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NC: 2024:KHC:14463 WP No. 10331 of 2013 possession of the land was not taken, the document under which possession was taken was clearly nebulous. It is necessary and pertinent to reiterate that once a scheme sanctioned under Section 18 of the BDA Act has lapsed under Section 27 of the BDA Act, then the; obvious corollary is that the provisions of Section 36 of the BDA Act become inoperative. Under the BDA Act, the land which is acquired vests in the Government only upon a notification under Section 16 of the Land Acquisition Act, 1894 is issued. However, since we have held that taking over of possession is nebulous, the question of issuing a notification under Section 16 of the Land Acquisition Act, 1894 would not arise. Hence, we hold that the land acquired is not vested in the Government. Therefore, the lapsing of the Scheme would invariably result in the lapsing of the acquisition. A Division Bench of this Court in the case of ANTHONY REDDY v. STATE OF KARNATAKA [(2019) 2 Kant LJ 629.], while considering the acquisition has also held that the lapsing of the Scheme would result in lapsing of the acquisition.
21. We do not find any infirmity in the finding of the Learned Single Judge. However, lapse of the Scheme under Section 27 of the BDA Act does not mean that the acquisition has lapsed."
(emphasis supplied)
34. In V.A. Narasimha Reddy's case (supra), learned Single Judge of this Court after taking note of fact that for Further Extension of Banashankari VI stage scheme, total extent notified for acquisition under preliminary notification was
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NC: 2024:KHC:14463 WP No. 10331 of 2013 1532 acres 17 guntas, but under final notification, it was reduced to 750 acres and thereafter award was passed and possession taken of 457 acres 25.2 guntas of land, out of which there was further de-notification, option for collection of betterment charges etc. observed that it was practically impossible to form layout of residential sites from disperse extents of lands and therefore practically impossible to implement project as initially conceived. Based on said observation, had proceeded to quash acquisition notifications insofar as 4 acres in Sy.no.107 of B.M.Kaval village. It is, however, stated by BDA that challenge against said order was pending before Hon'ble Supreme Court.
35. In R Adikeshavulu Naidu's case (supra), learned Single Judge of this Court held, in reference to J.P.Nagar VIII Phase Scheme, that development of only about 1/5th of original land area, 23 years after issuance of preliminary notification cannot be considered as substantial implementation of scheme and therefore it would result in lapsing of scheme and BDA could not be permitted to go on with scheme. It was also held if scheme has lapsed, even acquisition would lapse. However,
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NC: 2024:KHC:14463 WP No. 10331 of 2013 BDA has stated that order was pending in challenge before Hon'ble Supreme Court and interim order of stay was granted.
36. In Gautham Kamat Hotels' case (supra), learned Single Judge of this Court applied ratio in Adikeshavulu Naidu's case (supra) in respect of J.P.Nagar IX Phase scheme, taking note of fact that extent notified in preliminary notification was 1,333 acres 34 guntas, but, Final Notification was issued in respect of 1,111 acres 36¾ guntas. It was held even a purchaser of land subsequent to date of preliminary notification was entitled to file writ petition seeking declaration that scheme had lapsed. It was further held telephone and electricity usage bills were relevant to indicate possession. Insofar as substantial implementation utilization of only 329 acres out of 1,111 acres of land less than 1/3rd and in case of Doddakallasandra village only 12 acres out of 241 acres 20 guntas of land was held to establish failure to implement scheme substantially, consequently declaring scheme as lapsed. However BDA has stated that order was pending in challenge before Hon'ble Supreme Court and interim order was granted.
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NC: 2024:KHC:14463 WP No. 10331 of 2013
37. In H.Eraiah's case (supra) learned Single Judge of this Court involving acquisition of land for Banashanakari VI stage layout, had held mahazars drawn on printed form with no details of witness as unreliable and held scheme lapsed under Section 27 of BDA Act, in respect of property of petitioners therein. Likewise, in R.Mallaiah's case (supra) learned Single Judge of this Court, involving acquisition for Further Extension of Banashanakari VI stage found that BDA had collected betterment tax implying possession was not yet taken and proceeded to hold scheme had lapsed in respect of subject matter land. In both these matters unit for testing substantial implementation of scheme was subject matter land only.
38. On other hand, BDA is relying upon findings of learned Single Judge in S Hareesh's, case, (supra) and Division Bench decisions in H S Hanumanthappa and Krishnamurthy's cases (supra), for provision that Section 27 of BDA Act will be attracted only where Authority being in position to execute scheme, fails to do so and while burden to establish substantial development would be on Authority, petitioner was required to establish that there was dereliction of statutory duties and not
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NC: 2024:KHC:14463 WP No. 10331 of 2013 mere delay in implementing scheme. It is also contended that this Court has held release or de-notification of some extent of land from original scheme envisaged would not by itself attract presumption of lack of seriousness on part of BDA to implement scheme.
39. In support of its proposition, that unit for assessment of 'substantial implementation of scheme' would be entire scheme and not individual plot, Division bench decision in K.S.Sundaram's case (supra) is relied. Further reference is made to Division Bench decision in Chikkaboraiah's case (supra) that dispute about taking possession of petitioners' land would not justify finding that scheme had lapsed under Section 27 of Karnataka Urban Development Authorities Act, which is similar to Section 27 of BDA Act.
40. Reliance was also placed on decision in Indore Development Authorities case (supra), to contend that release of land from acquisition, de-notification etc. was because of certain reasons such as, existing houses, religious places, different land use etc. without affecting integrity of scheme would not call for interference.
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NC: 2024:KHC:14463 WP No. 10331 of 2013
41. Reliance was also placed on Division Bench decision in M. Maridev's case (supra) for proposition that issuance of notification under Section 16 (2) of LA Act, was in addition to take over possession and issuance of notification would be only conclusive proof of taking possession and non-issue and its issuance was not mandatory. Insofar as Section 27 of BDA Act, it was held development of 564 acres 39 guntas out of 604 acres and 23 guntas of land, when proposal to acquire was in respect of 1334 acres 12 guntas of land would not attract application of Section 27 of BDA Act.
42. To establish substantial implementation of scheme, reliance is placed on observations in W.P.no.44949/2003, wherein, it was stated that after taking possession of 580 acres 18 guntas out of total extent of 750 acres covered under Final Notification, 5991 sites were formed and 4983 sites were allotted to various applicants.
43. Attention was also drawn to order against dispossession and demolition until consideration of applications for allotment of alternative sites in operative portion of order. When such observations were in writ petition filed by
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NC: 2024:KHC:14463 WP No. 10331 of 2013 petitioners, above contention would amount to blowing hot and cold, which cannot be permitted.
44. In sum and substance, while petitioners contend that there is procedural failure in taking possession due to nebulous mahazars apart from fact that BDA claims to have implemented scheme in respect of only small portion as against scheme originally proposed which would lead to conclusion that there is no substantial implementation of scheme, thereby substantiating violation of Section 27 of BDA Act. On other hand, BDA contends that Section 27 of BDA Act, would attract only if twin conditions are satisfied and unit of land for assessment of substantial implementation will be entire scheme and not petitioners' land alone. Additionally, dispute over possession does not ipso facto lead to conclusion of lapse, when issuance of notification under Section 16 (2) of LA Act is not mandatory.
45. However, petitioners' contention has to be turned down on Bench strength, as decisions relied upon by petitioners in V.N.Narasimha Reddy, Adi Keshavulu Naidu, Gautam Kamat Hotels, R.Eraiah and M. Mallaiah's cases (supra) are
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NC: 2024:KHC:14463 WP No. 10331 of 2013 all rendered by learned Single Judges, whereas decisions relied upon by respondent-BDA namely, Hanumanthappa and Krishnamurthy's cases (supra) for circumstances to invoke Section 27 of BDA Act; and K.S.Sundaram and Chikkaboraiah's cases (supra) for unit for testing substantial compliance and M.Maridev's case (supra) about manner of taking possession cannot lead to conclusion about violation of Section 27 of BDA Act, are all Division Bench decisions.
46. Thus, it is also clear that error or dispute about taking possession has been held to be not having direct bearing while assessing substantial implementation of scheme. In view of K.S.Sundaram and Chikkaboraiah's cases (supra), unit for testing substantial implementation being scheme, observations of learned Single Judge in W.P.no.44949/2013 disposed of on 06.06.2006, noted above would reinforce claim by BDA that with approval granted by government for issuing final notification in respect of 750 acres only, original scheme stood modified out of which BDA had taken possession of 580 acres 18 guntas of land handed it over to Engineering Section for formation of layout, carving out 5991 sites and allotment of 4983 sites would indicate that there is substantial
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NC: 2024:KHC:14463 WP No. 10331 of 2013 implementation of scheme. Therefore, petitioners' contention about lapsing of scheme for violation of Section 27 of BDA Act would require to be rejected.
47. Insofar as legality of mahazars at Annexure-H (colly) for taking possession, perusal of mahazars would indeed reveal that they are drawn by filling blanks in printed form and drawn by Revenue Inspector. While, they contain signatures of panch witnesses, names and residential addresses are glaringly absent.
48. In this regard petitioners rely on Full Bench decision of this Court in S.M.Kannaiah's case (supra), Division Bench decision in Dr.A.Parthasarathi, Gokula Education Foundation and Single Judge decisions in Gautam Kamat Hotels, H.Eraiah and R.Mallaiah's cases (supra). While, BDA seeks to rely on Banda Development Authority's case (supra) and seeks to distinguish decision relied upon on facts. In Dr.Parthasathi's case (supra), it was noted that there was total lack of any independent witness; mahazar being found only in BDA file in Gokula Education Foundation, while in respect of B.A.Narasimha Reddy, Adi Keshavulu Naidu and
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NC: 2024:KHC:14463 WP No. 10331 of 2013 Gautam Kamat Hotels cases (supra), it is stated that BDA had questioned said decisions before Hon'ble Supreme Court, and interim order was granted in Adi Keshavulu Naidu and Gautam Kamat Hotels cases (supra).
49. It is seen that in none of cases, this Court has interfered with acquisition on sole ground that manner of drawing mahazar suffered from defect. In fact, Apex Court in Banda Development Authority's case (supra) has held there can be no hard-and-fast rule, what would constitute taking of possession of acquired land and if it is vacant land, it would suffice if after visiting spot, panchnama is drawn in presence of witnesses for taking possession.
50. In fact in Balwant Narayan Bhagde v. M.D. Bhagwat, reported in (1976) 1 SCC 700, it is held that such possession need not be as per under Rules 35, 36, 95 and 96 of Order 21 of Code of Civil Procedure. And though not strictly necessary, it would be necessary as a matter of legal requirement that notice should be given to owner or occupant of land that possession would be taken at a particular time, as such notice would eliminate possibility of any fraudulent or
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NC: 2024:KHC:14463 WP No. 10331 of 2013 collusive act of taking of mere paper possession, without occupant or owner ever coming to know of it. Referring to it, in Indore Development Authority's case (supra), Constitution Bench of Apex Court examined mode of taking possession and answered it as follows:
"247. The question which arises whether there is any difference between taking possession under the 1894 Act and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the 1894 Act, by taking the possession meant only physical possession of the land. Taking over the possession under the 2013 Act always amounted to taking over physical possession of the land. When the State Government acquires land and draws up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc.
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NC: 2024:KHC:14463 WP No. 10331 of 2013 is deemed to be the trespasser on land which is in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.
....
279. The Court is alive to the fact that there are a large number of cases where, after acquisition land has been handed over to various corporations, local authorities, acquiring bodies, etc. After depositing compensation (for the acquisition) those bodies and authorities have been handed possession of lands. They, in turn, after development of such acquired lands have handed over properties; third-party interests have intervened and now declaration is sought under the cover of Section 24(2) to invalidate all such actions. As held by us, Section 24 does not intend to cover such cases at all and such gross misuse of the provisions of law must stop. Title once vested, cannot be obliterated, without an express legal provision; in any case, even if the landowners' argument that after possession too, in case of non- payment of compensation, the acquisition would lapse, were for arguments' sake, be accepted, these third-party owners would be deprived of their lands, lawfully acquired by them, without compensation of any sort. Thus, we have no hesitation to overrule the decisions in Velaxan Kumar [Velaxan Kumar v. Union of India, (2015) 4 SCC 325 : (2015) 2 SCC (Civ) 599] and Narmada Bachao Andolan [State of
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NC: 2024:KHC:14463 WP No. 10331 of 2013 M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639, paras 78-85 : (2011) 3 SCC (Civ) 875] with regard to mode of taking possession. We hold that drawing of panchnama of taking possession is the mode of taking possession in land acquisition cases, thereupon land vests in the State and any re-entry or retaining the possession thereafter is unlawful and does not inure for conferring benefits under Section 24(2) of the 2013 Act."
(emphasis supplied)
51. In view of above, there is virtual approval of ratio in Banda Development Authority's case (supra). Moreover, this Court in W.P.no.44949/2013 has already affirmed acquisition, but with certain observations enabling land-losers and purchasers of sites to seek alternative reliefs. Petitioners herein are land-losers, were eligible for following relief:
"B(i) All petitioners who are
landowners/converted site owners (duly
converted for non-agricultural use of land, in accordance with law), who are seeking dropping of the acquisition proceedings in so far as their respective lands/sites are concerned, on ground that :
(a) their lands are situated within green belt area;
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NC: 2024:KHC:14463 WP No. 10331 of 2013
(b) they are totally built up;
(c) converted for non-agricultural use;
(d) garden and recognized nursery lands;
(e) who have built hospitals, educational institutions and factories;
(f) who have not been served with the notice of acquisition and
(g) who are in doubt about the inclusion of their land in the notification are permitted to make appropriate application to the authorities seeking such exclusion and exemption and producing documents to substantiate their contentions within three months from the date of this order.
(ii) It is made clear that the authority shall consider such request keeping in mind the status of the land as on the date of preliminary notification and to exclude any developments, improvements, constructions put up subsequent to the preliminary notification and then decide whether their cases are similar to that of the landowners whose objections were upheld and in respect of those lands no final notification is issued.
(iii) In the event the Authority comes to the conclusion that those persons are similarly placed and are covered by the Resolution of the BDA dated 28.06.2003 in Subject No.177/2003,
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NC: 2024:KHC:14463 WP No. 10331 of 2013 then to de-notify their lands/sites, built up portion and exclude them from acquisition.
(iv) Petitioners who are interested in availing this benefit shall make appropriate application within 90 days from the date of this order and thereafter, the authority shall give notice to those persons, hear them and pass appropriate orders expeditiously."
52. Though, petitioners claimed to have submitted representations through G. Krishnappa on 08.10.2003 for deletion of his lands from acquisition, same was in fact objections to final notification. It is observed above that doubtful or defective mahazar for taking possession had no bearing insofar as petitioners seeking relief of lapsing of scheme under Section 27 of BDA Act. Therefore, in a writ petition seeking for declaration under Section 27 of BDA Act, issue about legality of procedure for taking possession would not be relevant. Permitting such issue to be raised would amount to permitting petitioners who have already lost their challenge against acquisition to reinvent such challenge in another form, which would not be appropriate.
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53. Even if any scope for challenge on ground of defective or illegal possession remains, it would have to be tested on basis of totality of circumstances. Respondent BDA has asserted that acquisition for 'Formation of Further Extension of Banashankari VI Stage Scheme', proceeded with issuance of Preliminary Notification on 07.11.2002, Final Notification on 10.09.2003, and passing of awards on 12.12.2003 in respect of Sy.nos.33/1 and 33/2, in respect of Sy.nos.35/1, 35/2A, 36/1, 36/2 on 29.12.2003, and in respect of Sy.no.37 on 04.12.2003 respectively.
54. It is further stated that, SLAO thereafter issued notices under Section 12 (2) of LA Act on 30.12.2003 and 08.12.2003, produced as Annexures-R1D, R2B, R3D, R4D, R5D, R6D and R7D calling upon owners of land to hand over possession, on 14.01.2004 and 16.12.2004 respectively; possession of petitioners land was taken by drawing mahazars as per Annexure-H (colly) and publishing notification under Section 16 (2) of LA Act on 29.05.2007 as per Annexure-G. It was submitted that BDA had also deposited award amount before Civil Court on 04.02.2005 as per Annexures-R8 to R14A, followed by mutation in Record of Rights on 02.01.2013 as per
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NC: 2024:KHC:14463 WP No. 10331 of 2013 Annexures-A1 to A5. Above records indicate virtually seamless flow of events of acquisition and substantiate stand of BDA and would sustain, even if it were called to lead evidence to substantiate same. Hence, it is held that mode and method of BDA taking possession of petitioner' lands does not suffer from irregularity or illegality and petitioners would be barred from raising said issue while seeking declaration about lapsing of acquisition under Section 27 of BDA Act.
IV. Delay and Laches:
55. Bare perusal of Section 27 of BDA Act would indicate that said provision would entitle seeking for declaration about lapsing of acquisition, in case of failure to substantially implement scheme within five years from date of declaration under Section 19 (1) of BDA Act. Since final notification was issued on 10.09.2003 cause of action for such contention would have arisen as early as on 10.09.2008. But present writ petitions were filed on 25.02.2013. In petition there is virtually no explanation for delay. In fact, petitioners claim that cause of action for filing writ petition was entry of engineers or officials of BDA into petitioners land on 23.01.2013. But prayer sought
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NC: 2024:KHC:14463 WP No. 10331 of 2013 is for declaration about acquisition notifications being rendered null and void due to lapsing of scheme under Section 27 of BDA Act, for which cause of action had arose on 10.09.2008, itself. Therefore, filing of writ petitions in year 2013, without any explanation about delay and laches would not be tenable. It is held that writ petition is liable for dismissal on ground of delay and laches.
56. In view of above, writ petition is dismissed.
Sd/-
JUDGE PSG* List No.: 19 Sl No.: 1