Karnataka High Court
Sri K T Giriyanna vs State Of Karnataka on 20 December, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:46634
WP No. 55091 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 55091 OF 2018 (LA-BDA)
BETWEEN:
SRI K T GIRIYANNA
AGED ABOUT 85 YEARS,
NO.797, 10TH MAIN, 35TH CROSS,
4TH BLOCK JAYANAGAR
BENGALURU-560 011.
...PETITIONER
(BY SRI.UDAYA HOLLA., SENIOR ADVOCATE FOR
MS. ADITI GUJER, ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally
signed by URBAN DEVELOPMENT DEPARTMENT
ANAND N
Location: REPRESENTED BY ITS SECRETARY
HIGH
COURT OF VIKASA SOUDHA
KARNATAKA
BENGALURU-560 001.
2. BANGALORE DEVELOPMENT
AUTHORITY
REPRESENTED BY ITS COMMISSIONER
HAVING OFFICE AT
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NC: 2023:KHC:46634
WP No. 55091 of 2018
T CHOWDAIAH ROAD,
KUMARA PARK WEST
BENGALURU-560020.
3. THE SPECIAL LAND ACQUISITION OFFICER
BANGALORE DEVELOPMENT AUTHORITY
T CHOWDAIAH ROAD,
KUMARAPARK WEST
BENGALURU-560020.
4. SMT. H.V. JAYALAKSHMI
W/O LATE SAKEGOWDA
R/AT NO.421, 60TH CROSS,
HEALTH LAYOUT, ANNAPURNESHWARI NAGAR,
SRIGANDADHAKAVAL
BENGALURU 560091.
5. SMT. NANDINI @ NANDINI BHARANAIAH
D/O LATE BHAANAIAH AND
LATE SHANTHAMMA BHARANAIAH
R/AT NO.79, VENKATESHA NILAYA
SERPENTINE ROAD
NEAR KANNIKAPARAMESHWARI TEMPLE
K.P. WEST BENGALURU NORTH
SHESHADRIPURAM
BENGALURU 560020.
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WP No. 55091 of 2018
6. THE ASSISTANT CONSERVATOR OF FORESTS
BENGALURU SOUTH SUB DIVISION
BENGALURU URBAN DIVISION
CHOWDAIAH ROAD , NH - 4
KODANDARAMPURA
MALLESHWARAM WEST
BENGALURU - 560 012
...RESPONDENTS
(BY SRI. BHOJEGOUDA T KOLLER, AGA FOR R1, R3 &
R6;
SRI. DHYAN CHINNAPPA, SENIOR ADVOCATE FOR
SRI. K. KRISHNA, ADVOCATE FOR R2;
SRI. A. CHANDRACHUD, ADVOCATE FOR R4 & R5)
THIS WP IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO-
DECLARE THAT THE SCHEME FOR "FURTHER
EXTENSION OF BHANASHANKARI 6TH STAGE" NOTIFIED
BY THE R-2 AS TO THE PROPERTY DESCRIBED IN THE
SCHEDULE TO THIS WRIT PETITION HAS LAPSED AND
CONSEQUENTLY QUASH (i) THE PRELIMINARY
NOTIFICATION DATED 07.11.2002 ISSUED BY THE R-2
(VIDE ANNEXURE-A); (ii)THE FINAL NOTIFICATION
DATED 09.09.2003 ISSUED BY THE R-2 (VIDE
ANNEXURE-B).
THIS PETITION, COMING ON FOR FINAL
DISPOSAL, THIS DAY, THE COURT MADE THE
FOLLOWING:
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NC: 2023:KHC:46634
WP No. 55091 of 2018
ORDER
The petitioner, who asserts the ownership of land measuring 10 acres 07 guntas in Sy.Nos.70 and 71 of Turahalli village, Uttarahalli Hobli, Bengaluru South Taluk [the subject property], has filed this petition for declaration that the 'Further Extension Of Banashankari VI Stage Scheme' insofar as the subject property stands lapsed, and for quashing the following insofar as the subject property:
[a] the Preliminary Notification dated 07.11.2002 [Annexure-A], [b] the Final Notification dated 09.09.2003 [Annexure-B] and [c] the Awards dated 10.11.2003 and 10.11.2003 [Annexures-C1 and C2].
The petitioner, while claiming compensation in a sum of Rs.50,00,000/-, has also sought for declaration that the Bangalore Development Authority [the second respondent and hereinafter referred to as 'the -5- NC: 2023:KHC:46634 WP No. 55091 of 2018 BDA'] and the persons claiming under BDA cannot have any interest in the subject property.
2. The BDA has published Preliminary Notification dated 07.11.2002 under Section 17 of the Bangalore Development Authority Act, 1976 [for short, 'the BDA Act'] proposing to acquire an extent of 1532 acres 17 guntas [including the subject property] in different villages within Uttarahalli and Kengeri Hobli of Bengaluru South Taluk for the purposes of formation of 'Further Extension of Banashankari VI Stage', but the State Government has ultimately published the Final Notification dated 09.09.2003 under Section 19(1) of the BDA Act acquiring an extent of 750 acres.
3. The petitioner's grievance with the impugned notification insofar as the subject property must be examined in the light of the proceedings under the Karnataka Forest Act, 1963 ['the Forest Act'], the orders in the different writ/original -6- NC: 2023:KHC:46634 WP No. 55091 of 2018 proceedings and the BDA's case that possession of the subject property is taken and a certain portion thereof is developed with construction of a 80 Feet Road and formation of certain sites. The Assistant Conservator of Forests, Bangalore South Sub- Division [the sixth respondent], asserts that remaining extent in the subject property is Turahalli Gudda Forest.
The writ petition in W.P.No.44949/2003 and connected writ petitions:
4. The petitioner and the other persons who were the owners of the lands that are notified for acquisition have filed their respective writ petitions in W.P.No.44949/2003 and connected writ petitions. This Court has disposed of these writ petitions on 06.06.2006 upholding the acquisition proceedings but with certain directions, and insofar as the present petitioner, the relevant directions will be as follows:
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NC: 2023:KHC:46634 WP No. 55091 of 2018 B- (i) All the petitioners who are the 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 the ground that: (a) their lands are situated within green belt area (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......
(C) Till the aforesaid exercise is undertaken by the authority on the applications filed by the petitioners either for allotment of site or de--8-
NC: 2023:KHC:46634 WP No. 55091 of 2018 notifying or exemption sought for are considered, their possession shall not be disturbed and the existing construction shall not be demolished. After considering the application in the light of the aforesaid direction, the authorities are at liberty to proceed with the acquisition.
The underlining is by this Court.
The petitioner's subsequent Representation and the BDA's Resolution:
5. On 15.07.2006, the petitioner has filed his representation [Annexure-K] with the BDA in terms of the liberty reserved by this Court. The petitioner's request in this representation is as follows:
"............. This is the disparity and discrimination that has happened to me. My garden lands in survey Nos. 70 & 71 is totally developed garden having coconut, arcanut, valuable teak & other horticulture plants. These are only lands BDA has notified in the final notification.
............. Also BDA has developed a connecting Road to the project in our lands which has been clearly earmarked on the village map and sketch enclosed along with this letter. By acquiring our lands BDA will be -9- NC: 2023:KHC:46634 WP No. 55091 of 2018 putting us in a hardship of loosing our hard earned investments, also on our daily Bread.
Hence, I appeal to your good self to exclude our lands from further acquisition procedures as per Honourable High court orders on parity. Since, BDA has already developed a connecting road in part of our lands. It agreeable for me to retain the remaining portion of the lands in Survey Nos.70 & 71 apart from the road............."
5.1 The BDA has even resolved to delete the subject property from the acquisition. A copy of the Resolution dated 25.06.2007 is appended to this petition, and insofar as the subject property, this Resolution, reads as under:
ಕಮ ಾ ಮದ ಸ ೆ ಒಟು ಅ ಸೂಚ"ೆಯ ಸಂ$ಪ ವರಗಳ(
ಸಂ ೆ ೆಸರು ನಂ.
ನಂ ೕಣ ೕಣ
ಎ-ಗುಂ
9 vÀÄgÀ 70 4-13 4-13 ಸದ) ಜ+ೕ,ನ-.
ºÀ½î 71 5-34 5-34 /ಾ 0ಾರ1ಂದ 3
ರ2ೆಗಳನು3 ,+ ದು4, ಕಲು.
ಚಪ67 ಾ8ದು4, 97ಎ
"ಾಮಪಲಕ
ಾಕ:ಾ;ರುತ=ೆ. ಸದ)
ಜ+ೕ, ೆ ಅರಣ ಇ:ಾ ೆ ೆ
2ೇ)ರುವ?ದ)ಂದ
ಜ+ೕನುಗಳನು3
ಅ ಸೂಚ"ೆ@ಂದ
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NC: 2023:KHC:46634
WP No. 55091 of 2018
0ೈ9ಡುವಂCೆ ಸ0ಾ ರದ ಪತ
1"ಾಂಕ 26/12/2006 ರ
ಪತ ದ DೕEೆ ೆ ಈ
ಜ+ೕನುಗಳನು3 ಪ)Gೕ- ,
ಅರಣ ಇ:ಾ ೆ ೆ
9ಟು 0ೊಡಬಹು=ಾ;ರುತ=ೆ1
5.2 After this Resolution dated 25.06.2007,
the BDA has addressed a Communication dated 01.12.2007 to the petitioner informing him that his request for deleting the subject property from acquisition is considered in terms of the Government's request in its letter dated 26.12.2006 and a decision is taken to exclude the subject property from acquisition for the benefit of the forest department. The De-notification Committee, a committee constituted by the State Government under the Chairmanship of the Chief Secretary, in its 1 The translation of this could be as follows:
"Three roads have been formed, there is a Board saying this is BDA property and there is stone slab fencing. Because the subject lands belong to the Forest Department, as requested by the Government by its order dated 26.12.2006, the property will have to be excluded from the acquisition."
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NC: 2023:KHC:46634 WP No. 55091 of 2018 meeting on 17.12.2008 has also accepted the BDA's Resolution dated 25.06.2007 that the subject property and certain other properties, especially in the villages of Vajarahalli, Hosalli, Thalghatpura, Gubbala and Turahall are to be excluded from the acquisition proceedings, but it is common cause that the State Government is yet to take a decision and the matter is pending with the State Government. The details of the suit in O.S.No.1121/2015:
6. The petitioner contends that, when the matters stood thus, certain persons asserting that the BDA has allotted sites in the subject property in their favour have attempted to interfere with his possession of the subject property, and as such, he has filed the suit in O.S.No.1121/2015 for declaration and injunction against such third parties and BDA. The civil Court has granted the interim order on 23.09.2015 granting ex parte temporary injunction, and it has ultimately decreed the suit in
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NC: 2023:KHC:46634 WP No. 55091 of 2018 O.S.No.1121/2015 on 20.12.2022 and that no appeal is filed against such judgment and decree. The petitioner has also referred to the complaints lodged with the jurisdictional police and the allotments made by the BDA.
The proceedings under the Forest Act and the corresponding writ proceedings:
7. The Assistant Conservator of Forests, Bangalore South Sub-Division, has filed Objection Statements placing on record the following. A total extent of 159 acres 13 guntas in Sy.No.42 of Turahalli village is notified as Turahalli Gudda Forest.
The concerned Range Forest officer, in the year 2006, has registered proceedings against the petitioner for unauthorizedly occupying an extent of 7 Acres in Sy.No.42 of Turahalli village. Subsequently, the Deputy Conservator of Forests, after the conclusion of the proceedings under Section 64-A(1) of the Forest Act, has directed the petitioner, by the order
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NC: 2023:KHC:46634 WP No. 55091 of 2018 dated 11.01.2007, to vacate and handover vacant possession of 6 acres 38 guntas.
7.1 The petitioner has impugned the Deputy Conservator's Order dated 11.01.2007 in Appeal No. 12/2007 under Section 64A(3) of the Forest Act and Rule 69 of the Karnataka Forest Rules 1969, and the Appellate Authority [the Conservator of Forests], has disposed of this appeal on 05.12.2008. The petitioner has called in question the Appellate Authority's order in WP NO.89/2009, and this writ petition is allowed on 23.07.2012 quashing the order dated 05.12.2008 and directing the Appellate Authority to re-hear the appeal and directing a survey in the presence of the petitioner.
7.2 In the meanwhile, certain criminal proceedings2 are initiated that have culminated in this Court's order dated 12.06.2012 in Criminal petition No. 2664/2008. The criminal proceedings 2 The proceedings are in CC No. 2176/2007.
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NC: 2023:KHC:46634 WP No. 55091 of 2018 are quashed but with liberty to the Forest Authorities to conduct a fresh survey. The State Government has constituted a High-Level Committee vide the Government Order dated 26.10.2015 to examine the encroachment of forest lands in Bangalore Urban District. Thereafter, an authorized Map is prepared affirming that 4 acres 13 Guntas in Sy No. 70 and 2 acres 27 guntas in Sy No. 71 - an extent of 7 acres in the subject property - is part of Turahalli Gudda Minor Forest and it is held that the petitioner has encroached this extent.
7.3 The Appellate Authority, following the survey and this Court's order of remand as aforesaid in W.P.NO.89/2009, has heard the petitioner again, and the Appellate Authority by the order dated 27.10.2017 has directed the petitioner to vacate the encroachment. The petitioner has challenged the Appellate Authority's order dated 27.10.2017 in WP No.54268/2017, and this Writ Petition is disposed of on 27.02.2019 quashing the order dated 27.10.2017
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NC: 2023:KHC:46634 WP No. 55091 of 2018 and directing the Appellate Authority to re-consider the petitioner's grievance.
7.4 After this Court's order dated 27.10.2017 in WP No.54268/2017, yet another joint survey is conducted on 22.07.2021 with the petitioner, the Appellate Authority and the other officials of the Forest Department participating in the proceedings. The Assistant Conservator of Forest has asserted that the forest officials have raised certain objections, and there is no response on the same and that the Appellate Authority is yet to hear the appeal because the outcome of the survey is not finalized. The BDA's case:
8. The BDA asserts that the subject property is comprised in Package - VIII of Further Extension of Banashankari VI Stage. It has issued the Final Notification dated 09.09.2003 for execution of development work in different packages [including
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NC: 2023:KHC:46634 WP No. 55091 of 2018 Package - VIII] and Work Order is issued to a contractor, who after completion of the work, has raised the bills that are paid on multiple dates starting from 12.04.2004. As regards the communication by the Government for exclusion of the subject property from acquisition, the BDA contends that a joint survey is conducted in the presence of the Conservator of Forests, Bengaluru [South] and other officers of the Forest Department, but such joint survey has remained inconclusive because the Forest Department has not accepted the joint survey.
8.1 The BDA also contends that the Conservator of Forests, Bengaluru [South] will be the appellate authority to decide on the proceedings initiated under the Forest Act against the petitioner for unauthorized occupation of 7 acres in original Sy.No.42, and this Authority is yet to decide on the merits of the petitioner's appeal as against the finding that the petitioner has encroached the Forest land.
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NC: 2023:KHC:46634 WP No. 55091 of 2018 The BDA contends that the subject property is notified as forest land and as such, the petitioner cannot have any grievance.
8.2 The BDA has produced a sketch and Google Image Print out to demonstrate that the substantial portion of the lands in Sy.No.71 and Sy.No.70 [the subject property] is with the Forest Department and a 80 feet wide road developed by it runs through these lands and the adjacent lands and that sites have been developed in the remaining extent.
8.3 The BDA thus asserts that possession of a certain portion of the subject property while also contending that the Forest Department has raised a dispute asserting that the subject property is a part of the forest declared as such by the erstwhile Mysore Maharaja. The BDA further asserts that the Regional Commissioner, Bengaluru Division, is informed that certain documents have been created in respect of
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NC: 2023:KHC:46634 WP No. 55091 of 2018 the subject property and adjacent lands in Sy.Nos.69, 72, 73 and 74 of Turahalli village and these lands are sold creating a false title in these properties. The BDA also contends that the Commissioner, Survey and Revenue Department, has informed the BDA that the notification for acquisition of 10 acres 35 guntas of land must be withdrawn.
The Private Respondent's case:
9. The private respondents have filed their statement of objections reiterating the stand taken by the BDA and the Forest Department. They also assert that they have been allotted corresponding sites in the area as mentioned in the approved plan as extracted above and that they are in possession of the property. This Court must record that these private respondents claim the benefit under the respective sale deeds and the revenue records. The Rival Submissions:
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NC: 2023:KHC:46634 WP No. 55091 of 2018
10. Sri Udaya Holla, the learned Senior Counsel for the petitioner, while being categorical that the petitioner has consented for formation of a 80 Feet Wide Road within the subject property, submits that the petitioner must succeed in the writ petition because he can demonstrate that the possession of the subject property has not been taken by the BDA after the impugned Final Notification. Sri. Udaya Holla canvasses that the dispute whether the subject property is a forest land or not must necessarily be decided in the appropriate proceedings, but the acquisition notifications cannot prevail because [a] this Court's order dated 06.06.2006 in W.P.No.44949/2003 and connected writ petitions is that if a particular land in an agricultural or nursery land, it must be excluded, [b] the BDA has resolved to exclude the subject property from acquisition and [c] the BDA has failed to demonstrate that it has taken actual possession of
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NC: 2023:KHC:46634 WP No. 55091 of 2018 the subject property. The learned Senior Counsel's primary submissions are:
10.1 The petitioner had the advantage of the interim order during the pendency of the earlier writ petition in W.P.No.53576/2003 [one of the connected writ petition in W.P.No.44949/2003] and continued to have the benefit of orders against dispossession because this Court, while disposing of the aforesaid writ petition, has directed the BDA not to disturb possession. The petitioner also had the benefit of temporary injunction granted in the original suit which admittedly is partly decreed on 20.10.2022 granting permanent injunction.
10.2 The BDA issued a Notice dated 22.12.2006 informing the Petitioner about a proposed spot inspection that would be conducted on 04.01.2007, but no spot inspection as scheduled was conducted. However, a spot inspection is allegedly conducted on 04.12.2007, and the officials of the
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NC: 2023:KHC:46634 WP No. 55091 of 2018 BDA have identified several trees3 and developments in the subject property besides a 80 Feet Wide Road that runs through the Said Land.
10.3 These circumstances, and the fact that the BDA's officials have recorded the nature of the standing trees and that the Forest Officials admit the petitioner's possession [though allegedly unauthorizedly] demonstrate that the petitioner continues to be in possession of the subject property. The BDA's resolution to exclude the subject property, and the De-Notification Committee's acceptance thereof, must necessarily be considered in the light of the above.
10.4 The BDA has resolved to exclude the subject property from the acquisition proceedings, and if the resolution is to exclude the subject 3 The reliance is on Annexure - L, which is a Note Sheet in the BDA's concerned file. It is recorded that at the time of inspection on 04.12.2007 it is observed that there are 5 coconut trees, 195 teak Trees, a Jack Fruit Tree, a Stone Rivetted Well and Tube Well.
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NC: 2023:KHC:46634 WP No. 55091 of 2018 property from the acquisition proceedings, it is indisputable that no sites are formed therein. Therefore, neither the Forest Department's claim nor the BDA's case that the Forest Department is in possession of some portion of the subject property and that sites have been formed in the other extent, can deter the merits of the petitioner's case.
10.5 The BDA relies upon a mahazar drawn in cyclostyled form to assert that possession is taken, but in the light of a string of decisions by this Court, including Meenakshi Thimmaiah and Ors. v. State of Karnataka and Anr4, it is settled that mere drawing up of a mahazar in cyclostyled manner cannot be accepted as a proof of possession being taken especially when the entries in RTCs for the subject properties are in favour of the petitioner. The BDA, unless it establishes that actual possession of the subject property is taken as declared by this 4 ILR 2010 KAR 62
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NC: 2023:KHC:46634 WP No. 55091 of 2018 Court in V. Gunda Reddy v. The Secretary Department of Revenue and Others5, must fail in supporting the impugned notifications.
11. Sri Dhyan Chinnappa, the learned Senior Counsel for the BDA, is supported by Sri A. Chandrachud, the learned Counsel for the private respondents. The learned Senior Counsel, without contesting the reliance on the proposition that drawing up of mahazar would itself not suffice to demonstrate that the possession is taken pursuant to the acquisition notification, submits that the petitioner admits that, even as of the date of his representation as per Annexure-K, a road is developed in the subject property, and this by itself is a significant as it completely undermines the petitioner's case that the possession has not been taken. In addition, Sri Dhyan Chinnappa relies upon the documents furnished to establish that the work 5 ILR 2005 KAR 5692
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NC: 2023:KHC:46634 WP No. 55091 of 2018 contract is issued to a contractor for execution of the layout work in different packages including Package - VIII for the subject property.
11.1 Sri Dhyan Chinnappa relies upon the decision of a Division Bench of this Court in Krishnamurty vs Bangalore Development Authority6 to assert that once it is demonstrated that possession is taken and a Scheme is executed, there cannot be a declaration that the acquisition insofar as certain lands covered under the Scheme stands lapsed. Sri Dhyan Chinnappa also submits that the petitioner cannot succeed when it is established that the authorities have visited the subject property; that they have drawn panchnama regarding delivery of possession, a recognized mode of taking possession as held by the Hon'ble Supreme Court in Banda Development Authority vs Motilal 6 ILR 1996 Karnataka 1258
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NC: 2023:KHC:46634 WP No. 55091 of 2018 Agarwal7 and that the Scheme, subject to the Forest Department's claim, is executed with formation of layout followed by allotment of sites.
12. This Court, at the very outset, must observe that the propositions put forth are rather settled and as such there need be an elaborated discussion except for observing that this Court must examine, as indicated in framing the question for consideration as aforesaid, which of these propositions would be applicable in the circumstances of the case. In the peculiarities of the facts and circumstances of the case and the rival submissions, this Court is of the considered view that the question for consideration is:
Whether this Court, with the petitioner's possession of the subject property being undeniably jeopardized with the proceedings under the Forest Act underway and the other circumstances, can opine 7 [2011]5 SCC 394
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NC: 2023:KHC:46634 WP No. 55091 of 2018 either that the 'Further Extension of Banashankari VI Stage Scheme' stands lapsed insofar as the subject property or quash the impugned notifications.
13. Indeed, the petitioner can claim that he must have an advantage of the interim order in the earlier writ petition in WP No.53576/2003, the final direction against dispossession given while disposing of the aforesaid writ petition as also the benefit of temporary injunction and the partial decree dated 20.10.2022 in O.S.No.1121/2015. However, this Court is of the considered view that the merits of the petitioner's case against the 'Further Extension of Banashankari VI Stage Scheme' insofar as the subject property cannot be confined to the consideration of just these two circumstances or that the BDA also relies upon the cyclostyled mahazar to support taking of possession of the subject property in the year 2003.
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NC: 2023:KHC:46634 WP No. 55091 of 2018
14. The interim order and the final direction are in a series of writ petitions filed by different persons and therefore these orders must be read contextually and subject to the peculiarities of each case. This Court has granted the interim order in W.P.No.53576/2003 against dispossession of the petitioner, and this culminates with the order dated 06.06.2006 with the general direction while disposing of series of writ petitions with directions against dispossession without a specific finding on whether the petitioner was indeed in possession of the subject property.
15. Crucially, the petitioner admits that a 80 Feet Road is formed in the subject property and the adjacent lands in terms of the approved Scheme. This would be a very significant circumstance, and this circumstance will be significant for the fact that the petitioner, who contends that he was in possession of the subject property from the very beginning, does
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NC: 2023:KHC:46634 WP No. 55091 of 2018 not place on record any document or circumstance to demonstrate when or why or how he consented to give up the extent utilized for the formation of road. If indeed the petitioner was in possession of the subject property, it is difficult to accept, especially with the proceedings under the Forest Act, that the petitioner would have consented for formation of a road without any document or proceedings being drawn in that regard.
16. There is a material at this point of time for this Court to opine that the BDA, while forming the undisputed 80 Feet Road in the subject property, could have formed a layout and sites. The materials that are considered to render this opinion are not just the mahazar that is drawn or the execution of the work as seen in the following sketch, but also the primary documents such as payment of bills, allotment of sites and sale deeds executed in favour
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NC: 2023:KHC:46634 WP No. 55091 of 2018 of the private respondents and the applicants. The sketch in this regard is as follows:
17. When the question whether the subject property was a nursery or a garden land fell for consideration by the BDA consequent to this Court's order in WP No.53576/2003, the dispute over whether the subject property is part of Turahalli Minor Forest, a dispute commenced in the year 2006, was pending consideration in WP No.89/2009. This writ petition in WP No.89/2009 is disposed of by
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NC: 2023:KHC:46634 WP No. 55091 of 2018 order dated 23.07.2012 requiring the Conservator of Forests [the Appellate Authority] to conduct a joint survey to ascertain whether the subject property is a forest land. The Appellate Authority, following a survey and this Court's order of remand as aforesaid in WP No.89/2009, has heard the petitioner again, and the Appellate Authority by the order dated 27.10.2017 has directed the petitioner to vacate the encroachment holding that the subject property is a forest land.
18. The petitioner has challenged the Appellate Authority's order dated 27.10.2017 in WP No.54268/2017, and this Writ Petition is disposed of on 27.02.2019 quashing the order dated 27.10.2017 and directing the Appellate Authority to re-consider the petitioner's grievance. After this Court's order dated 27.02.2019 in WP No.54268/2017, yet another joint survey is conducted on 22.07.2021 with the petitioner, the Appellate Authority and the other officials of the Forest Department participating in the
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NC: 2023:KHC:46634 WP No. 55091 of 2018 proceedings. At this stage, this Court must refer to the Google Satellite Image Print Out8. This image must be considered, and is also considered.
19. The question whether the subject property is a part of the forest or not is to be decided by the Conservator of Forests and subject to such 8 The genuineness or the location of this Image is not disputed.
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NC: 2023:KHC:46634 WP No. 55091 of 2018 conclusion, the State Government will have to take its decision on the BDA's Resolution dated 25.06.2007 to exclude the subject property from the acquisition proceedings as also the affirmation thereof by the De-notification Committee by its Resolution dated 17.12.2008. The import of the BDA's resolution, which is because of the Government's request dated 26.12.2006 for exclusion on the ground that it is a Forest, is limited to such extent and this Court cannot declare that the Scheme has lapsed or quash the acquisition foreclosing these proceedings because of such resolution. The question framed for consideration is answered accordingly.
In the light of the afore, the petition stands dismissed and all the pending applications are rejected.
Sd/-
JUDGE SA/nv