Karnataka High Court
Sri Rajappa vs The Bangalore Development Authority on 22 June, 2012
Author: S.Abdul Nazeer
Bench: S. Abdul Nazeer
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE S. ABDUL NAZEER
WRIT PETITION NOS.5460/2012 & 6916/2012 (LA-BDA)
Between:
1 Sri Rajappa,
S/o late Chandrappa,
Aged about 50 years.
2 ** Smt. Bhagya,
W/o late Narayanaswamy,
Major.
Both are r/a No.2,
Near New Karnataka Stores,
Chikkabanaswadi Main Road,
Bangalore - 560033. .... Petitioners.
(By Sri Chandrashekar, Adv.)
And:
The Bangalore Development Authority,
T.Chowdaiah Road, Kumara Park West,
Bangalore - 560 020,
Reptd. by its Commissioner. .... Respondent.
(By Sri M.B.Prabhakar, Adv.)
** Corrected vide Court Order dated 13.9.2012.
2
These Writ Petitions are filed under Articles 226 & 227 of
the Constitution of India, praying to quash the endorsement dated
25.3.2011 at Annexure 'G', etc.
These Writ Petitions coming on for Preliminary Hearing in
'B' Group this day, the Court passed the following:
ORDER
In these cases, petitioners have called in question the validity of the endorsement at Annexure 'G' dated 25.3.2011 whereby the application of the petitioners for allotment of a site under the Bangalore Development Authority (Incentive Scheme for Voluntary surrender of land) Rules, 1989 (for short 'Incentive Scheme') has been rejected.
2. The petitioners land bearing Sy.No.115 of Banasawadi Village, K.R.Puram, Bangalore South Taluk, was acquired by the State Government for public purpose, namely, for the formation of a layout, called 'East of NGEF Layout'. In this connection, preliminary notification was issued on 26.7.1984 followed by final notification dated 23.10.1986. The petitioners have challenged the 3 validity of the said notification by filing a suit in O.S.No.6095/2004 before the 17th Additional City Civil Judge, Bangalore. The court below dismissed the suit by its judgment and decree at Annexure 'C' dated 24.2.1999 on the ground that the civil suit challenging the acquisition proceedings was not maintainable. Thereafter, petitioners made an application for allotment of a site under the Incentive Scheme. The said application was dismissed by the Bangalore Development Authority by its order at Annexure 'F' dated 4.3.2009. The petitioners challenged the said order by filing a writ petition before this Court in W.P.No.27783/2009. This Court by its order dated 15.9.2010 allowed the writ petition and remanded the matter to the respondent for fresh consideration in accordance with law. BDA has once again issued the endorsement at Annexure 'G' dated 25.3.2011.
3. The contention of the learned Counsel for the petitioners is that in identical circumstances, two other land owners whose share of land in the aforesaid survey number has been acquired, 4 were allotted sites under the Incentive Scheme. The petitioners have not been allotted the site under the Scheme. Therefore, the order at Annexure 'G' is required to be quashed. It is further contended that this Court in W.P.No.3347/2000 disposed of on 8.8.2002 (between SRI THIMMARAYAPPA VS. THE STATE OF KARNATAKA & OTHERS) has held that if challenge to the acquisition proceedings by the owners, will not preclude them from seeking allotment of sites under the Incentive Scheme. It is further submitted that the said order has been confirmed by the Division Bench of this Court in W.A.No.3100/2003 dated 18.7.2005 (between BANGALORE DEVELOPMENT AUTHORITY VS. THIMMARAYAPPA).
3. On the other hand, learned Counsel appearing for the respondent has made two fold submissions. His first submission is that the Division Bench of this Court in SRI THIMMARAYAPPA's case (supra) has clearly observed that the learned Single Judge's order in Thimmarayappa's case cannot be a 5 precedent for the cases where notice under Section 9 is issued and the land owners/occupants have resisted dispossession. In the present case also, since the petitioners have resisted the acquisition proceedings, they are not entitled for allotment of site under the Incentive Scheme. It is further contended that the Incentive Scheme has come into force w.e.f. 1.4.1989. It has no retrospective operation. The land of the petitioners were acquired much earlier to the date of the aforesaid Scheme. Therefore, petitioners are not entitled for the allotment of the site.
4. The Division Bench of this Court in THIMMARAYAPPA's case (supra) has held that the order of the learned Single Judge in the said case can have no precedent value for the cases where the notice under Section 9 is issued and the land owners/occupants have resisted dispossession. It is also true that the Incentive Scheme has come into force w.e.f. 1.4.1989. The question is whether the said Incentive Scheme is applicable for the cases where lands have been acquired earlier to the date of the 6 coming into force of the Scheme. These questions have not been considered by the respondent. I am of the view that the respondent has to reconsider the matter.
5. In the result, the writ petitions are accordingly allowed in part. The endorsement at Annexure 'G' dated 25.3.2011 is hereby quashed. The matter is remitted back to the respondent for fresh disposal in accordance with law. The respondent is directed to re- consider the application of the petitioners seeking allotment of site under the Incentive Scheme within a period of three months from the date of receipt of a copy of this order. No costs.
Sd/-
JUDGE.
BMM/-