Karnataka High Court
Sri K.G. Srinivasa vs The Government Of Karnataka on 1 October, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 01ST DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.4505 OF 2010 AND 4539-40 OF 2010
(LA-BDA)
BETWEEN:
1. Sri. K.G. Srinivasa,
Aged about 65 years,
Son of K.G. Girisa,
2. Sri. K.G.Venkatesh,
Aged about 55 years,
Son of K.G.Girisa,
3. Smt. K.G. Padmavathi,
Aged about 68 years,
Wife of D.H.Maruthi,
All are residing at No.18
"Vaishnavi",
32nd Cross,
Bhavani Layout,
Kattariguppe,
B.S.K. II Stage,
Bangalore. ....PETITIONERS
(By Shri. K. Suman, Advocate)
2
AND:
1. The Government of Karnataka,
By its Secretary,
Urban Development Department,
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,
Bangalore - 560 020. ... RESPONDENTS
(By Shri. K.S.Mallikarjunaiah, Government Pleader for
Respondent No.1
Shri. A.D.Vijaya, Advocate for Respondent No.2)
*****
These Writ Petitions are filed under Article 226 of the
Constitution of India praying to quash the Notification dated
01.01.1998 issued by the first respondent, as published in the
Karnataka Gazette on 07.01.1998 i.e., Annexure-P as arbitrary,
illegal and without jurisdiction in so far as it relates to the lands of
the petitioenrs in Sy. No.47/1B measuring 1 acre 21 guntas,
Sy.No.48/5B measuring 15 guntas and Sy.No.48/6B measuring 4
acres 28 guntas, all situated at Tavarekere Village, Begur Hobli,
Bangalore South Taluk, Bangalore and consequently quash the
award passed by the third respondent in proceeding dated
3
15.11.2009 i.e. Annexures-L1 and L2 in so far as it relates to the
lands of the petitioners.
These petitions coming on for Hearing this day, the Court
made the following:
ORDER
Heard the learned counsel for the petitioners and the respondents.
2. The petitioners claim that they are absolute owners in possession of lands in Survey No.47/1B measuring 1 acre 21 guntas, Survey No.48/5B measuring 15 guntas, including 1 gunta of kharab and Survey No.48/6B measuring 4 acres 28 guntas of Tavarekere Village, Bangalore South Taluk. It is the case of the petitioners that the said lands along with other lands originally belonged to one K.G.Girisa, the father of the petitioners. It was initially purchased by Girisa and later on, under a registered partition deed dated 6.4.1964, the lands were partitioned amongst the family members, including the brothers of K.G.Girisa. 4
After the partition, the lands in Survey No.48/5 and Survey No.48/6, as they were then assigned survey numbers, came to be acquired by the Government of Mysore under a notification dated 20.6.1966, which was duly published in the Official Gazette on 30.6.1966 under Section 18 of the erstwhile City Improvement Trust Board Act, 1945.
The petitioners claim that after the said notification no further steps were taken by the erstwhile City Improvement Trust Board (Hereinafter referred to as ' the CITB' for brevity) or the Government of Karnataka or its successor-in-interest, the second respondent - Bangalore Development Authority (Hereinafter referred to as ' the BDA' for brevity). It is their further case that the Scheme for which these lands in Survey No.48/5B and 48/6, were acquired for the formation of further extension of IX Block Jayanagar, Bangalore, though notified for acquisition, continued to remain with the petitioners, as there was no award passed much less possession taken over by the CITB or its successors or the first respondent - State Government. It is their further case 5 that notification had been issued under Section 16(2) of the Land Acquisition Act, 1894 (hereinafter referred to as ' the LA Act' for brevity) in relation to the said lands. The BDA, however, by a subsequent notification dated 19.9.1977, sought to acquire the lands in Survey No.47/1B, which also belonged to the petitioners in terms of partition effected in the family measuring 1 acre 21 guntas, for the purpose of formation of the Byrasandra- Tavarekere-Madivala Scheme. The petitioners contend that this Preliminary Notification was followed by a Final Notification dated 7.2.1978 issued under Section 15(1) of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as ' the BDA Act' for brevity) , in relation to lands in Survey No.47/1B. After the Final Notification, no further proceedings were taken by the BDA or the Government and no award was passed nor was possession taken or any notification issued in that regard. It is contended that the petitioners at a partition effected amongst all the three lands, the division amongst the petitioners inter se was as follows :-
6
Sl.No. Sy.No. Name of the Petitioner Extent
A G
1. 47/1B Sri. K.G.Srinivasa 0 23
2. 47/1B Sri. K.G. Venkatesh 0 09
3. 47/1B Smt. K.G. Padmavathi 0 29
Total 1 21
4. 48/5B Smt.K.G. Padmavathi 0 15
5. 48/6B Sri. K.G. Srinivasa 1 37
6. 48/6B Sri. K.G.Venkatesh 2 11
7. 48/6B Smt. K.G.Padmavathi 0 20
Total 4 28
The petitioners contend that even if the position was that no award was passed nor possession taken, the respondents, namely, the State Government as well as the BDA laid claim over 7 an extent of 37 guntas of land and a road was carved out in the said lands in Survey No.46/6B along with other lands belonging to third-parties as against the total extent of 5 acres 25 guntas in Survey No.48/6B and the petitioners are left with only 4 acres 28 guntas. It is their complaint that an extent of 37 guntas has been illegally acquired by the respondents for the formation of cross road without any award being passed and without any notification being issued under Section 16(2) of the LA Act nor has any compensation been paid to the petitioners. The petitioners, however, were interested in protecting their properties and in having the said lands denotified in as much the petitioners did not have any other source of livelihood.
The petitioners carried on correspondence with the State Government and the BDA, calling upon them to denotify the said lands and accordingly, the State Government is said to have withdrawn the Preliminary Notification, by issuing a notification under Section 48(1) of the LA Act, in relation to the lands in Survey No.47/1B of Tavarekere Village, measuring 1 acre 21 8 guntas and the withdrawal notification issued under Section 48(1) of the LA Act was duly published in the Gazette on 27.8.1992. Similarly, the Final Notification dated 20.6.1966 was also sought to be withdrawn by the Government by issuing a notification under Section 48(1) of the LA Act in relation to lands in Survey No.48/5B and 48/6B, measuring 1 acre 16 guntas and 6 acres and 1 gunta, respectively. This was duly published in the Official Gazette dated 27.8.1992. The petitioners were also placed on notice of the said withdrawal and the petitioners have continuously enjoyed possession of the lands. Therefore, apart from 37 guntas of land in Survey No.48/6B, which was utilised by the State Government and the BDA, for widening of the Bannerghatta road and for formation of a cross-road, there was no interference with the remaining extent of lands of the petitioners.
Incidentally, it is also stated that the very lands have been converted for non-agricultural purposes by a conversion order dated 21.12.1968 granted by the competent authority and the 9 petitioners have applied to the BDA for approval of formation of a layout in the said lands and the following payments had been made to the BDA:
"A. Supervision Charges .. Rs.12,718.00
(Paid vide Challan No.RP 728 dt:22.03.1962)
B. Conversion Fees .. Rs.66,748.69
(Paid vide Challan No.SLR 358 dt:22.03.1969) C. Layout Charges .. Rs.39,443.00 (Paid vide D.D.No.929065 dt:02.08.1971 drawn on Syndicate Bank, Gandhinagar Branch, Bangalore). .. Rs.39,453.00 D. Layout Charges (Paid vide D.D.No.928175/1206 dated 03.11.1971 drawn on Syndicate Bank, Gandhinagar Branch, Bangalore). .. Rs.50,000.00"
The petitioners have produced incidental documents, such as, pahanis and RTC extracts in respect of the lands, to 10 demonstrate their continuous possession apart from other documents that are produced in support of their case that the lands have been duly converted and charges have been collected by the BDA in respect of the same. It is also pointed out that the lands in Survey Nos.48/6B and 47/1B, were subject matter of proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 and were duly exempted in culmination of those proceedings on collection of Rs.4,50,801/- pursuant to those proceedings.
When matters stood thus, it transpires that in the first week of January 2010, the uncle of petitioner no.1, who is a neighbouring land owner, was served with a notice of purported determination of compensation in respect of lands in Survey Nos.48/6B and 48/5B of Tavarekere Village. The petitioners have not been served with any notice and the petitioners on learning of the notice served on their uncle one K.G. Dhakatappa, had made further inquiries with the Land Acquisition Officer and were shocked to learn that proceedings had been initiated to determine the compensation amount under the awards passed in relation to 11 lands in Survey Nos.48/5 and 48/6 and that awards had been passed as on 15.11.2009 and the petitioners have even obtained a certified copy of the award proceedings.
The petitioners claim that they had no notice or knowledge of the said award proceedings and it is also inexplicable that the award is in relation to two notifications dated 27.8.1992 produced at Annexures - D and E and that the lands of the petitioners, particularly, in Survey No.47/1B, 48/5B and 48/6B along with land in Survey No.47/1A has been duly denotified from acquisition. But in the award proceedings, the Government is said to have passed two orders dated 9.3.1995 after lapse of three years, whereunder earlier notifications dated 27.8.1982 were sought to be altered by substituting the schedule as 48/5A-1, 48/5A-3 and 48/6A in place of lands in Survey No.48/5B and 48/6B and similar lands in Survey No.47/1A, 47/1B were sought to be replaced as 47/1A and 47/2A. These, the petitioners would submit, are illegal notifications. When, for the first time, they read the award dated 15.11.2009 in January 2010, that the 12 petitioners have learnt about the same and therefore, are before this court.
It is also pointed out that as per notification dated 22.5.1996, the notification dated 9.3.1995, namely, Annexure -M came to be withdrawn and the earlier notifications dated 27.8.1992 at Annexures-D and E came to be restored and that order remained unaltered. Therefore, the lands were totally denotified. The Government thereafter has restored the earlier Gazette Notifications dated 27.8.1992.
It transpires that subsequently, as noticed from the award proceedings dated 15.7.2009, the Government published another notification dated 1.1.1998, wherein the subsequent notification dated 22.5.1996 was withdrawn and notification dated 9.3.1995 substituting the schedule appended to the notification, both dated 27.8.1992, at Annexures- D and E, came to be restored. The petitioners have obtained a copy of the notification dated 1.1.1998. This the petitioners became aware of only in January 13 2010 when they learnt of the notification dated 26.11.2009 namely, notices issued to the uncle of the petitioners, K.G.Dakatappa and thereafter, in retrospect, the petitioners having learnt of the illegal orders passed by the State Government. It is in that background that the present writ petition is filed on various grounds, but, primarily to contend that the State Government having thought it fit to denotify the acquisition proceedings under Section 48(1) of the LA Act, the Government would lose its power to deal with the lands by seeking to withdraw denotification by a subsequent order. This would be a negation of the effect of withdrawal from the acquisition proceedings. The State Government is equipped with the power to compulsorily acquire any land by initiating fresh proceedings, but once having denotified the land, could not have revived the acquisition proceedings by seeking to withdraw denotification. This clearly is illegal and cannot be countenanced in law.
It is also contended that the acquisition proceedings being of some vintage and the lands having been acquired for the 14 benefit of the erstwhile CITB and later BDA, there is a mandate to implement the Scheme within a fixed period, namely five years, as contemplated under Section 27 of the BDA Act and apparently possession not having been taken within a period of five years, the question of implementing the Scheme within five years from the date of such acquisition cannot be countenanced and therefore, it is the second ground on which the petition is sought to be urged. Reliance is placed on several authorities in support of the case of the petitioners.
3. The BDA has filed its statement of objections to contest the petition. From a reading of the statement of objections, the petition averments are denied. Significantly in Paragraph-7 of the Statement of Objections, denotification of the acquisition proceedings is admitted, but, reliance is sought to be placed on the withdrawal of the denotification. As rightly pointed out by the learned Counsel for the petitioners, if once denotification was ordered under Section 48(1) of the LA Act, it would presuppose that possession was never taken of the land and that the land had 15 not vested in the State. It is only then that the question of denotification would arise. The denotification having been published in the Gazette would have its effect of declaring that the land has been duly denotified since possession was not taken of the same. The action of the State Government to thereafter withdraw the order of denotification cannot be countenanced in law, though it was always open for the State Government under its power of eminent domain to notify the lands, if it was required for a public purpose and to initiate fresh proceedings and to acquire the same. The process of issuing denotification and then withdrawing the notification is not a measure that would be legal as once the land is denotified, the rights of the land owner would revive and stand restored. This is neither contemplated under Section 48 of the LA Act nor would it stand to common sense. Therefore, the same cannot be sustained.
Insofar as the utilisation of 37 guntas of land in Survey No.48/6B is concerned, the petitioners having unchallenged at the earliest point of time and since they were satisfied with the 16 denotification of the remaining extent of land, the petitioners cannot be dispossessed of the lands, which have been duly denotified without the State initiating fresh acquisition proceedings, if the law so permits.
Accordingly, the petition is allowed. The Notification dated 1.1.1998 at Annexure-B is quashed as being illegal and without jurisdiction. Consequently, the award passed in LAC 37/1966-67 dated 15.11.2009 would also stand quashed.
Sd/-
JUDGE nv