Karnataka High Court
Sri Periyandavan vs The Bangalroe Development Authority on 12 October, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12Th DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.38306-308 OF 2011 (LA-BDA)
BETWEEN:
1. Sri. Periyandavan,
Son of Late Kuppusamy,
Aged about 75 years,
Residing at Old No.14,
New No.15, 'Sakthi Nivas',
4th Main, O.M.B.R.Layout,
Banaswadi,
Bangalore - 560 043.
2. Smt. A.P.Saradamani,
Wife of C.K.Ramachandran,
Aged about 65 years,
Residing at Old No.12,
New No.13, 'Anashhwara',
4th Main, O.M.B.R.Layout,
Banaswadi,
Bangalore - 560 043.
3. Smt. Shakunthalamma,
Wife of Late S.S.Ramesh,
Aged about 52 years,
No.6, 'Santhrupthi Nilaya',
2
4th 'A' Main , O.M.B.R. Layout,
Bhuvanagiri,
Banaswadi,
Bangalore - 560 043. ...PETITIONERS
(By Shri. M.S.Bhagwat and Shri. D.Pavanesh, Advocates)
AND:
1. The Bangalore Development Authority,
Represented by its Commissioner,
T.Chowdaiah Road,
Kumarapark West,
Bangalore - 560 020.
2. The Executive Engineer,
Bangalore Development Authority,
North Division, B.D.A. Complex,
R.T.Nagar,
Bangalore - 560 032.
3. The State of Karnataka,
Represented by its Secretary,
Department of Housing and
Urban Development,
Bangalore - 560 001. ...RESPONDENTS
(By Shri. B.V.Shankaranarayana Rao, Advocate for Respondent
Nos. 1 and 2
Shri. K.S.Mallikarjunaiah, Government Pleader for Respondent
No.3)
*****
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These Writ Petitions are filed under Article 226 of the
Constitution of India praying to call for the records from the
respondents; declare that the respondents have no right
whatsoever over the petition schedule properties comprised in
Sy.No.27/11 of Banaswadi Village, Krishnarajapuram Hobli,
Bangalore South Taluk measuring 2 acres 6 ½ guntas and etc;
These petitions, having been heard and reserved on
05.10.2012 and coming on for Pronouncement of Orders this day,
the court delivered the following:
ORDER
The petitioners contend that one Yale Venkatappa Reddy was the owner of land in Survey No.27 of Banaswadi village, Krishnarajapuram Hobli, Bangalore South Taluk, measuring 2 acres and 6½ guntas, out of the total extent of 6 acres 20 guntas. It is claimed that the occupancy rights in respect of the said land had been conferred on Venkatappa Reddy under the provisions of the Karnataka (Personal and Miscellaneous) Inams Abolition Act, 1954. Subsequently, the said extent of 2 acres 6½ guntas was phoded and separate hissa number was assigned as 27/11. On his death, revenue records pertaining to the said land were mutated in the name of his son V.Anjaneya Reddy.
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2. It is claimed that a residential layout consisting of house sites was formed by Venkatappa Reddy during his lifetime and he had sold the sites during his life time and after his death, Anjaneya Reddy had also sold various sites in favour of different persons.
It is contended that the first petitioner had purchased one of the sites bearing No.15, 4th main road, OMBR Layout, Banaswadi, Bangalore, which was earlier assigned site no.14, House List Khata No.1249/1292 formed in Survey No.27/11 of Banaswadi, measuring east to west 40 feet and north to south 61½ feet along with a house constructed thereon, which was purchased under a sale deed dated 13.12.1993. With the said property along with the entire area coming within the jurisdiction of the Bruhat Bengaluru Mahanagara Palike (Hereinafter referred to as ' the BBMP' for brevity), the first petitioner claims to have paid betterment charges in respect of the property to the said authority. The khata has been transferred in the name of the first petitioner. He, in turn, has gifted the property to his daughter Geeta K 5 Kannan, under a registered gift deed dated 2.9.2010. She, in turn, had gifted the property in favour of the first petitioner under a registered gift deed dated 27.8.2011. Thereafter, khata was once again transferred in the name of the first petitioner.
The second petitioner claims to have purchased site no.13, later assigned BBMP PID No.88-280-13, earlier bearing No.12/4, House List Khata No.1249/1292 formed in Survey No.27/11, measuring east to west - 40 feet and north to south - 60 feet. The same had been purchased under a sale deed dated 15.4.1998. The said property has also come under the jurisdiction of the BBMP and the khata and municipal records are transferred in the name of the second petitioner and the second petitioner has constructed a house therein.
The third petitioner's husband one Ramesh had purchased one of the sites bearing No.6, 4th 'A' Main Road, OMBR Layout, Banaswadi, Bangalore, later assigned BBMP PID No.88-259-6 measuring 30feet x 40 feet along with a constructed house. The same was purchased under a registered sale deed dated 14.2.2000. 6 The property now falls within the jurisdiction of the BBMP and the khata and the municipal records stand in the name of the third petitioner.
3. It is the case of the petitioners that the first respondent intended to form a residential layout, called "Banaswadi Scheme between Old Madras Road and Banaswadi Road" and a Preliminary Notification dated 3.11.1977 under Sections 17(1) and (3) of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as ' the BDA Act' for brevity) was duly published in the Official Gazette on 24.11.1977, proposing to acquire lands in different villages of Binnamangala, Byappanahalli, Banaswadi, Doddigunte including the land in Survey No.27 measuring 6 acres 20 guntas. The name of the owner was shown as Shri Chinnaswamy Mudaliar, B.V.Ramaswamy Reddy and Others. Thereafter, a declaration under Section 19(1) of the BDA Act dated 13.11.1980 was published in the Official Gazette on 22.11.1980. The lands 7 comprised in Survey No.27/11 measuring 2 acres 6 ½ guntas had not been separately notified. The petitioners therefore had continued in possession of the property for over four decades. The second respondent however had issued a show-cause notice dated 17.9.2011, which was affixed on the house of the petitioners 1 and 2 on 24.9.2011, calling upon them to produce certain documents, failing which, the structures would be demolished and that possession would be resumed. It was claimed that an award had been passed pursuant to the notifications aforesaid and that possession has been taken under a mahazar dated 9.2.1983 and that notification under Section 16(2) of the Land Acquisition Act, 1894 (Hereinafter referred to as ' the LA Act' for brevity) had also been issued.
The petitioners promptly replied to the show-cause notice claiming that the land in Survey No.27/11 of Banaswadi village was not acquired and that the entire scheme had lapsed and that under Section 33 of the BDA Act, the BDA would not have power to recover possession. The third petitioner claims that no 8 such show-cause notice was issued to the third petitioner. However, respondents 1 and 2 having affixed such notice on the neighbouring premises, the third petitioner has also joined petitioners 1 and 2, under the apprehension that the third petitioner's property also would be demolished. The petitioners claim that they are in settled possession and that the summary ejectment by the BDA is impermissible. Since the BDA has failed to form a layout within the stipulated period of five years, the Scheme proposed by the respondents has lapsed under Section 27 of the BDA Act. The remedy, if any, for the respondents to evict the petitioners, would be following the due process of law. Therefore, the petitioners are before this court.
4. The learned counsel appearing for the petitioners would contend that the owners, namely, the petitioners have never been notified of the acquisition proceedings. The show-cause notice now issued by the second respondent is without jurisdiction. In terms of Section 33 of the BDA Act, it is the Commissioner or the 9 authority, which could issue such a notice. The said Section cannot be made applicable to the facts of the present case on hand. No orders of the authority for the formation of an extension or a layout has been violated or contravened. It is settled law that Section 33 has no application for taking over of possession of property or for demolishing a house.
It is further contended that the document produced by the petitioners, on the face of it, demonstrate their settled possession as contemplated in a case decided by a division bench in John B James and others vs. Bangalore Development Authority, ILR 2000 KAR 4134. It is contended that the Scheme formulated by the first respondent has lapsed after five years from the date of declaration, namely, 13.11.1985 in terms of Section 27 of the BDA Act. The section clearly lays down that if there is a failure to execute a Scheme substantially, the Scheme would lapse and the provisions of Section 36 shall become inoperative.
It is also contended that the first respondent would have no authority or jurisdiction to exercise any right in respect of 10 properties that have been admittedly handed over to the BBMP under Section 4 of the Karnataka Municipal Corporations Act, 1976 and it is that authority, to which the petitioners are paying taxes and the municipal records are also in their names. Hence, the action of the first respondent is in contravention of the principles of natural justice. It is reiterated that the respondents have never taken possession of the lands belonging to the petitioners and that the present proceedings initiated to recover possession is without authority of law. The so-called award and mahazar as well as the notification under Section 16(2) of the LA Act are apparently got-up documents to suit the convenience of the respondents. It is emphasized that the respondents had not implemented the Scheme originally formulated out of the total extent of land acquired. It is on these grounds that the petition is sought to be urged and the learned Counsel also places reliance on several authorities, namely, 11
1. Sri. Changamaraju Vs. Bangalore Development Authority and another, W.P.No.2875/1979 and connected cases dated 9.11.1979 ,
2. Kulsum R. Nadiawala Vs. State of Maharashtra and others, (2012) 6 SCC 348,
3. Sri. Srinath Hegde and others vs. Bangalore Development Authority and others, W.P.No. 16074-100/2010 dated 02.09.2011,
4. Smt. Gunwant Kaur and others vs. Municipal Committee, Bhatinda and others, 1969(3) SCC 769,
5. General Government Servants Cooperative Housing Society Limited, Agra Vs. Sh. Wahab Uddin and others, (1981) 2 SCC 352,
6. Special Land Acquisition Officer, Bombay and others vs. M/s. Godrej and Boyce, (1988) 1 SCC 50,
7. Seethalakshmi Ammal Vs. State of Tamil Nadu and another, 1993 AIR (Mad) 1,
8. Smt. Nagu Bai and others vs. State of Karnataka, ILR 2001 KAR 1169,
9. State of Karnataka vs. M/s. Gokula Education Foundation, Bangalore and others, 2005 AIR Kant. H.C.R.1758,
10.Patasi Devi Vs. State of Haryana and others, 2012 (6) Supreme
322. 12
5. The petition is resisted by the BDA and it is contended that the writ petition itself is not maintainable in view of the following decisions:-
1) Union of India vs. Sr. Shivakumar Bhargava and others, JT 1995 (6) SC 274,
2) Poornaprajna House Building Co-operative Society vs. Bailamma alia Bailamma and others, ILR 1998 KAR 1441,
3) John B .James and others vs. Bangalore Development Authority and another, ILR 2000 KAR 4134,
4) Smt. Kanthamma and others Vs. State of Karnataka and another, 1984 (2) ILR (Kar) 1494,
5) A. Krishna Murthy (since deceased) by his legal representatives, vs. Bangalore Development Authority, 1996 (3) Kar. L.J. 505 (DB),
6) M.B. Ramachandran vs. State of Karnataka, ILR 1992 KAR 174,
7) Bondu Ramaswamy Vs. Bangalore Development Authority, 2010 (7) SCC 129,
8) Offshore Holdings Private Limited Vs. Bangalore Development Authority, 2011 (3) SCC 139.
The petitioners claim that the properties belonging to them, which are carved out of Survey No.27/11 measuring 2 acres 6 ½ 13 guntas, are subject matter of acquisition proceedings. The particulars of which, are indicated hereunder, in a tabular form:-
Sl. Event Date Document
No. Annexure
01 Preliminary Notification under 3.11.1977
Section 17 of the Bangalore
Development Authority, 1976
was issued for formation of a
layout known as "Old Madras
Road Banasavadi Road" which
included land in Sy. No.27/11
of Banasavadi village
measuring about 2 acre 6½
guntas. The notified Khatedars
were Narayana Reddy,
Chinnaswamy Mudaliyar, B.V.
Ramaswamy Reddy.
02 Final Notification came to be 13.11.1980
issued in respect of the 2 acre
6½guntas.
03 Award came to be passed with 08.07.1982 R-1
a compensation amount of Rs.
2,60,762.50 for an extent of 2
acre 6½ guntas.
04 Possession was taken by the 09.02.1983 R-2
Government as per the
Mahazar and handed over to
the Engineering department.
05 Notification under Section 16 15.03.1983 R-3
(2) of the L.A. Act, 1894
evidencing factum of taking
possession of land in Sy. No.
27/11, Banasavadi village.
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It is further contended that the narration of events by the petitioners would have no relevance insofar as the finality to the acquisition proceedings are concerned. When the lands are acquired and vested with the BDA, the subsequent events cannot confer any right or interest on the individual petitioners. It is contended that the petitioners are unauthorised occupants and are not in a position to contend that the acquisition proceedings have lapsed. The Scheme has been substantially implemented and therefore, the petitioners are not entitled to any relief and that the proceedings initiated by the respondents are in accordance with law.
6. It is in the above background that the rival contentions are examined with reference to the material on record as well as the authorities cited.
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It is not in dispute that all the petitioners have purchased their respective properties much after the acquisition proceedings had culminated in the Notification dated 15.3.1983, under Section 16(2) of the LA Act, having been issued. The law is well settled that insofar as acquisition proceedings are concerned, the petitioners are not entitled to question the same. The argument canvassed that if acquisition proceedings can otherwise be said to be vitiated or if the Scheme, pursuant to which the acquisition proceedings had been initiated under the BDA Act, had lapsed, it would still enable persons, such as the petitioners, who are subsequent purchasers, when they can demonstrate that possession of the acquired land insofar as the petitioners are concerned, had not been taken, to yet maintain the writ petition, is one contention. In the alternative, it is urged that even if the petitioners are to be treated as rank trespassers, who have constructed their houses and have been residing therein for over 12 years, the law as laid down in the case of John B James, supra would apply and that the petitioners could claim to be in settled 16 possession, whose possession cannot be disturbed, otherwise than under due process of law and not by recourse to summary eviction as contemplated by the respondents by issuance of the impugned notifications.
While the learned Counsel for the respondents would insist that the Scheme has been substantially implemented and the question of the Scheme having lapsed, and the plea of the petitioners that they have entrenched themselves on the land, is not a ground that can be urged.
The fact remains that though on the one hand, there is material on record to demonstrate the sequence of events insofar as the acquisition proceedings are concerned, parallelly, there are also records available which indicates that the petitioners have been put in possession of the land in question, though in the face of the acquisition proceedings, by their vendor. The BBMP, a local authority, has recognised the petitioners as khatedars and has been collecting property taxes in respect of the buildings constructed by them. And as noticed, the first petitioner had 17 purchased the property under a sale deed dated 13.12.1993, the second petitioner by a sale deed dated 15.4.1998 and the third petitioner by a sale deed dated 14.2.2000. Therefore, if the petitioners continue in possession as on date, all of them have been in possession for over 12 years. The Division Bench of this Court in John B James, supra had formulated two points for consideration, namely, "(1) Whether BDA, as a statutory authority, has the right to forcibly dispossess a trespasser or unauthorised occupant of its land, by virtue of the provisions of the BDA Act (read with KMC Act) or Regulation Act or Planning Act? and (2) Whether BDA, as the true owner of the property, has the right to forcibly dispossess any trespasser or unauthorised occupant?"
In Paragraph-71 of the said judgment, the legal position with regard to the true owner in relation to a trespasser is culled out as follows:-18
"71. Having regard to the principles laid down in the said decisions, we may conveniently cull out the legal position in regard to a true owner vis-à-vis a trespasser as under:-
i) A true owner [even if it is the State or a statutory body] has no right to forcibly, dispossess an unauthorized occupant [including a trespasser] in settled possession, otherwise than in accordance with law.
ii) A trespasser or unauthorised occupant in settled possession, can be dispossessed only in accordance with an order/decree of a competent Court/tribunal/authority or by exercise of any statutory power of dispossession/demolition entrusted to the state or statutory Authority.
iii) A person in unauthorized possession shall be deemed to be in settled possession, if his entry into the property was lawful or authorised.
iv) A person in unauthorised possession, whose entry into the property is illegal or unauthorized, can claim to be unsettled possession, only if he is in open, continuous and actual physical possession over a sufficiently long period, with the knowledge of the true owner.
v) A surreptitious and unauthorised entry into another's land and stealthy trespasser, will not have the effect of dispossessing the true owner of giving possession to the trespasser. Such acts will lead to 19 settled possession only when the true owner having knowledge of it, acquiesces in it.
vi) Where the trespasser is not in settled possession, all acts of the trespasser in regard to the property will be considered as only attempts to secure possession.
The true and rightful owner can re-enter and reinstate himself by removing the obstruction or the unauthorized construction put up by the trespasser by using the minimum force. Such action by the true owner will be considered as defending his possession and resisting an intrusion with his property and not forcible dispossession of an unauthorized occupant.
vii) Where however the trespasser is in settled possession and such settled possession adverse to the true owner continues for 12 years, the right of the true owner is extinguished and the trespasser as possessory owner acquires absolute title to the property in question." (emphasis supplied) Hence, the Division Bench has made an exception insofar as a trespasser who is in settled possession. Assuming that the petitioners can be treated as trespassers, they have demonstrated that they are in settled possession in the face of the material documents produced. The recourse open to recover possession 20 from the petitioners, therefore, would be to initiate proceedings either under the Karnataka Public Premises (Eviction of unauthorised occupants) Act, 1974, or to file a civil suit. The summary eviction of the petitioners, as in the case of other trespassers, which may be available to the BDA, cannot be exercised as against the petitioners.
The writ petitions are allowed and the impugned notices at Annexures - G and G1 are hereby quashed.
Sd/-
JUDGE nv