Karnataka High Court
Sri Ravindra T vs The State Of Karnataka on 19 July, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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WP No. 55159 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2022
BEFORE
®
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 55159 OF 2014 (LA-BDA)
BETWEEN:
1. SRI. RAVINDRA. T
S/O LATE THIMMAPPA
AGED: 49 YEARS
SINCE DECEASED
REP. BY LR'S 1(A) & 1(B)
1(A) MR. VINU.R
S/O LATE RAVINDRA.T
AGED ABOUT 32 YEARS
Digitally signed
by POORNIMA
SHIVANNA 1(B) MR. PRAMOD KUMAR.R
Location: HIGH
COURT OF S/O LATE RAVINDAR.T
KARNATAKA AGED ABOUT 30 YEARS
PETITIONER NO.1(A) AND 1(B)
ARE RESIDING AT NO.23, 2ND CROSS
2ND MAIN, THIMMAPPA REDDY LAYOUT
HULIMAU GATE, B.H.ROAD
BANGALORE-560 076.
2. SRI. T. RAMAREDDY
S/O THIMMAPPA
AGE:46 YEARS
3. SRI. GANESHA
S/O THIMMAPPA
AGE:37 YEARS
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WP No. 55159 of 2014
4. SRI. MANJUNATH.T
S/O LATE THIMMAPPA
AGE:35 YEARS
5. SRI. MADHU.T
S/O LATE THIMMAPPA
AGE:31 YEARS
6. SRI. SRIKANTH. T
S/O LATE THIMMAPPA
AGE:29 YEARS
7. SRI. NAGARAJA
S/O LATE VENKATAPPA
AGE:65 YEARS
PETITIONER NO.1 & 2 AND 4 TO 7 ARE
R/O # 23, 2ND CROSS, 2ND MAIN
THIMMAPPAREDDY LAYOUT
HULIMAU GATE, B.H.ROAD
BANGALORE-76
8. SRI. KRISHNAREDDY
S/O LATE VENKTAPPA
AGE:63 YEARS
PETITIONERS NO.3 & ARE
R/O NO:14, 1ST MAIN
THIMMAPPAREDDY LAYOUT
HULIMAUGATE, B.H.ROAD
BANGALORE-560 076
...PETITIONERS
(BY SRI.A.S. PONNANNA, SR. COUNSEL FOR
SRI. PAVAN KUMAR.M.N, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY ITS SECRETARY
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WP No. 55159 of 2014
DEPARTMENT OF HOUSING &
URBAN DEVELOPMENT, VIKASA SOUDHA
BANGALORE-560001
2. THE BANGALORE DEVELOPMENT AUTHORITY
BY ITS COMMISSIONER
KUMARA PARK WEST
T.CHOWDAIAH ROAD, BANGALORE-560020
3. THE SPECIAL LAND ACQUISITION OFFICER
BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST, T.CHOWDAIAH ROAD
BANGALORE-560020.
4. THE DIRECTOR GENERAL & INSPECTOR
GENERAL OF POLICE
NO.2, NRUPATHUNGA ROAD
BANGALORE CITY, BANGALORE
5. THE STATION HOUSE OFFICER
HULIMAVU POLICE STATION
HULIMAVU, BANNERGATTA ROAD
BANGALORE-560 076
... RESPONDENTS
(BY SRI. NITHYANANDA.K.R, AGA FOR R1, R4 & R5;
SRI. ASHOK HARANAHALLI, SR. COUNSEL FOR
SRI. T.P. RAJENDRA KUMAR SUNGAY, ADVOCATE FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI OR ANY OTHER WRIT TO DECLARE
THAT THE ACQUISITION COVERED UNDER THE PRELIMINARY
NOTIFICATION ISSUED ON 8.9.1987 IN NO.BDA/ALAO/5/18/87-88
ISSUED BY THE 2ND RESPONDENT AS PER ANNEXURE-C AND THE
FINAL NOTIFICATION DATED 28.7.1990 IN NO.HUD/231/MNX/90 AS
PER ANNEXURE-D ISSUED BY THE 2ND RESPONDENT IN RELATED TO
LANDS OF THESE PETITIONERS ARE CONCERNED, IS LAPSED IN
VIEW OF SECTION 27 OF THE BANGALORE DEVELOPMENT
AUTHORITY ACT, 1976 FOR FAILURE TO IMPLEMENT THE SCHEDULE
SUBSTANTIALLY AND ETC.
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WP No. 55159 of 2014
THIS WRIT PETITION COMING ON FOR FURTHER ARGUMENTS
AND HAVING BEEN RESERVED FOR ORDERS ON 14.06.2022, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER
1. The petitioners are before this Court seeking for the following reliefs:
a. Issue a writ in the nature of certiorari or any other writ to declare that the acquisition covered under the Preliminary notification issued on 8.9.1987 in No.BDA/ALAO/5/18/87-88 issued by the 2nd respondent as per Annexure-C and the final notification dated 28.7.1990 in No.HUD/231/MNX/90 as per Annexure-D issued by the 2nd respondent in related to lands of these petitioners are concerned, is lapsed in view of section 27 of the Bangalore Development Authority Act, 1976 for failure to implement the Schedule Substantially.
b. Issue an appropriate writ or order declaring that in view of Section 27 of the Bangalore Development Authority Act 1976, Section 36 of the said Act is inapplicable much less by virtue of Section 24[2] of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 [Central Act No. 30 of 2013] the acquisition is deemed to have been passed even as against the 1st respondent State is concerned.
c. Issue an appropriate writ or order directing the respondents not to meddle with the property right of the petitioners except in accordance with law contemplated under Article 300A of the Constitution of India.
d. Pass any appropriate writ, order or direction as this Hon'ble Court deem it fit and proper in the facts and circumstance of the case and allow this -5- WP No. 55159 of 2014 writ petition with cost, in the ends of justice and equity.
2. The petitioners claim to be the owners of Sy.No.80/1 measuring 2 acres 4 guntas situated at Hulimavu Village, Bannerghatta Road, Bangalore South Taluk, Bangalore.
3. The petitioners contend that the said land was one among various lands acquired for the formation of Byrasandra, Tavarekere and Madivala Layout (BTM Layout) under the Preliminary Notification dated 08.09.1987 and Final Notification dated 28.07.1990. The petitioners are before this Court seeking for the aforesaid reliefs on the ground that the Scheme for which the lands have been acquired has lapsed and therefore, the aforesaid reliefs are required to be granted.
4. It is stated that the Preliminary Notification was issued to an extent of 805 acres 21 guntas of land consisting of 524 acres 9 guntas from Hulimavu -6- WP No. 55159 of 2014 Village and 231 acres 21 guntas from Arekere Village. Whereas the Final Notification was issued for 388 acres 9 guntas from Hulimavu Village and 174 acres 25 guntas from Arekere Village.
5. The petitioners' forefathers had filed W.P.No.19277/1990 challenging the acquisition which came to be disposed on 19.09.1996 reserving liberty to approach Bangalore Development Authority (BDA) by submitting a suitable representation. In the event of any constructions having been made in the land belonging to them, which was acquired, the BDA was directed to consider the application for allotment of the area in favour of the petitioners on the basis of price fixed in respect of other similar sites or lands.
6. The BDA was directed not to take steps to demolish the existing buildings till it considers and disposes of the representations of the land owners. Though such representation was made, it was not considered. -7- WP No. 55159 of 2014
7. The BDA initiated proceedings under Section 33(2) of Bangalore Development Authority Act (for short, 'BDA Act') and an order was passed by the Executive Engineer of the BDA directing the demolition of construction on the land in question on the ground that the construction is unauthorized which is contrary to the order passed by this Court in W.P.No.19277/1990. Hence, the petitioners filed another W.P.No.19877/2007 contending that since for more than 17 years, the petitioners having been in possession, occupation and enjoyment of the property, the land not having been utilized by the BDA, the scheme for which the above land was acquired had lapsed. Further, a direction was sought to restrain the BDA and its officers from interfering with the possession of the petitioners.
8. This Court taking into account the Mahazar dated 06.11.1990 and also the notification issued under Section 16(2) of the Land Acquisition Act, 1984 (for -8- WP No. 55159 of 2014 short, 'L.A Act') dated 31.05.1994 dismissed the Writ Petition vide order dated 16.08.2010 on the ground that there are no relevant materials produced by the petitioners to point out substantial lapse of the scheme.
9. Sri.A.S.Ponnanna, learned Senior Counsel for the petitioners submitted that:
9.1. The issuance of notification under Section 16(2) of the L.A Act is not conclusive evidence or proof to construe that the physical possession was taken over from the land owners. There is only a rebuttable presumption raised.
9.2. The notification under Section 16(2) of L.A.Act was issued on 31.05.1994 referring to the spot Mahazar of the year 1990 contending that the possession was taken over in the year 1990, which could not be so for the reason that there was no award which had been passed as on -9- WP No. 55159 of 2014 that date and without an award having been passed, the possession of the land could not have been taken over.
9.3. Out of 524 acres 9 guntas of Hulimavu Village where the petitioners' land is situated, the final notification was only issued to an extent of 388 acres 9 guntas out of which only 117 acres 1 gunta was handed over to the Engineering Division and ultimately, the layout is formed only to an extent of 31 acres 2 guntas in Hulimavu Village.
9.4. As regards Arekere village, a preliminary notification was issued for 231 acres 21 guntas and final notification was issued only to an extent of 174 acres 25 guntas and the land handed over to the Engineering Section is only 45 acres 4 guntas out of which layout has been formed over an extent of land measuring 7 acres 20 guntas. This statement of facts and
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details are on the basis of the information which had been furnished by the Assistant Executive Engineer, No.3 Sub-Division of the BDA, Bangalore.
9.5. The extent of land utilized is less than 10% insofar as Hulimavu village is concerned as compared to preliminary notification and much less than 5% insofar as Arekere village is concerned which would bring into play Section 27 of the BDA Act which in turn would exclude the applicability of Section 36 of the BDA Act. 9.6. The BDA and the Police Department are acting in collusion with each other. The Police Department wanting to set up a police station and police quarters had approached the BDA for transfer of Sy.No.80/1 to the Police Department. In terms of the layout plan, which had been approved, the land in Sy.No.80/1 has been earmarked for housing. In the Revised
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WP No. 55159 of 2014 Master Plan of 2015, the land is earmarked for residential, partially industrial and mutation corridor. Hence, the same could not have been sanctioned for the purpose of establishing a police station. However, giving a go-by to the same, the request of the Police Department was placed before the Board of BDA which vide Subject No.433/2008 had passed a resolution on 24.04.2008 approving the request and an extent 8498.12 sq. mtrs in Sy.No.80/1 was allotted in favour of Hulimavu Police Station. Subsequently, on 24.01.2014, a C.A. Site lease agreement came to be entered into by the BDA in favour of the Police Inspector, Hulimavu Police Station, Bangalore, which came to be registered and possession certificate was issued on 03.02.2014.
9.7. The land which had been earmarked for housing purposes could not have been
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WP No. 55159 of 2014 designated as a civic amenity site and no lease in respect of the said land could have been executed in favour of Police Department terming the land as a civic amenity site. 9.8. In the background of the above allotment, when the police authorities sought to interfere with the possession of the petitioners, the petitioners filed a suit in O.S.No.5659/2015 wherein an application for interlocutory injunction was also filed, which came to be dismissed by the trial Court as regards which a Misc. First Appeal in MFA No.5442/2015 is pending, wherein an undertaking was given by the Police Department that no permanent structure would be put up on the said land and the land would be used only for the purpose of parking of the seized vehicles. He submits that subsequently the police station has been built
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WP No. 55159 of 2014 elsewhere and this land is not required for the purpose of establishing a police station. 9.9. He refers to various other proceedings, which have been filed before this Court as regards the very same scheme and acquisition and contends that this Court has consistently held in number of Writ petitions that the Scheme in respect of BTM layout (6th Stage) has failed in view of Section 27 of BDA Act and in this regard, he refers to the decisions of this Court in Sri. R. Adhikesavulu Naidu & Others vs. The State of Karnataka reported in ILR 2011 KAR 3657 and in Sri. H. Krishna Reddy vs. The State of Karnataka & Another in W.P.No.37797 of 2011 dated 03.01.2013 etc. 9.10. On these grounds, he submits that the scheme has lapsed in respect of entire BTM layout(6th Stage). This Court having held in various Writ
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WP No. 55159 of 2014 Petitions that the scheme has failed though the reliefs are restricted to that of the petitioners' land in those Writ Petitions, he submits that once this Court comes to a conclusion that the scheme has failed, the said conclusion applies to the entire scheme and not only to the land of the petitioners in those proceedings. Thus, when the scheme is declared to have failed and Section 36 of the Act has become inoperable, the entire notification, both the Preliminary and Final Notifications are to be considered as non- est and if that be so, the acquisition of the land of the petitioners is required to be quashed. 9.11. Once Section 36 of the Act is made inapplicable on account of lapsing of the scheme, any action taken in respect of the scheme including taking possession and/or vesting of the land would be of no consequence. Hence, the question of the
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WP No. 55159 of 2014 Government continuing to hold the land would not at all arise.
9.12. The acquisition of the land under the BDA Act is subject to the requirement of L.A Act, since without the procedure under L.A Act being fulfilled, there cannot be any acquisition of the land.
9.13. He refers to Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 'LARR Act') and submits that the same is also applicable to the present proceedings since the petitioners continue to be in possession. It is only symbolic possession which has been taken by the respondent-State and no compensation has been received by the petitioners.
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WP No. 55159 of 2014 9.14. At this stage, when pointed out the decision of the Division Bench of this Court in W.A.No.946/2016 which has held that Section 24(2) of the LARR Act is not applicable to BDA. He fairly submits that he would not press the said arguments before this Court. 9.15. He refers to the decision in the case of Sri. R. Adikesavulu Naidu vs. State of Karnataka by its Secretary reported in ILR 2011 KAR 3657 more particularly Paras 127 to 134, 136 thereof which are reproduced hereunder for easy reference:
127. While the BDA has placed the two final Notifications dated 17.9.1997 and 5.4.1999 along with the records in the two files, the record relating to third final Notification dated 17.10.1999 purporting to cover an extent of 92 acres of land and said to be contained in file No. UDD/485/MNX/99, no record is placed before the Court.
128. Be that as it may, even on the admitted factual position and as per the record, the claim of the BDA if at all is one of its ability to implement the scheme in respect of an extent of 201 acres 29 guntas
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as against the initial plan covering an extent of 1009 acres, this again being only a claim and not based on any material placed before the Court for examination or for confirmation and on the contrary, it is the admitted fact that in respect of 216 acres 33 guntas, the Government has gone on issuing Notifications under Section 48 of the LA Act withdrawing from the acquisition proceedings in respect of lands covered under these Notifications.
129. It is also admitted that an extent of 80 acres 28 guntas have in fact been given for group housing schemes. It is also a further fact stated in the additional statement that an extent of 145 acres 30 guntas of Government land has not been handed over to the BDA. It is also admitted that in respect of an extent of 117 acres 10 guntas, while no award has been passed at all, such lands are said to be covered by unauthorized layouts, comprising of built up area, some parts under litigation before the Court and impracticality of utilization of land etc.
130. In this state of chaos and confusion prevailing about the manner of implementation of the scheme, insofar as the subject land in Sy. No. 30 is concerned, it is admitted that the Award is passed only on 25.1.2010 and possession is sought to be taken only during April 2010. From this state of affairs, it is clear that the scheme is definitely not implemented in respect of the subject land in Sy. No. 30. While it is not clear in which other land and to what extent the scheme has been implemented and even as to the meaning of the implementation of the scheme, things are in a state of
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WP No. 55159 of 2014 confusion, petitioners assert that they continue to remain in possession of this survey number as purchasers in the year 2004-05 and to the extent of land indicated in their conveyance deeds.
131. From the above admitted facts, it becomes crystal clear that even after the expiry of a period of five years from the date of last final notification i.e., on 17.10.1999, the scheme is not implemented in any manner or to any extent and if at all an implementation even as per the BDA in the year 2010-11 is only in respect of the extent of 201 acres 29 guntas which is by no stretch of imagination, an implementation of the substantial nature or a substantial implementation of the scheme as is contemplated under Section 27 of the BDA Act. Section 27 of the BDA Act is inevitably attracted as implementation in respect of the extent which is slightly a little more than one-fifth of the original extent of land in respect of which scheme had been prepared and proposed and sent to the Government for approval, is never a substantial implementation of the scheme and with the scheme having lapsed after five years from the year 1999, there is absolutely no scope or possibility in law for the BDA to implement the scheme any more as of now, and at any rate, not by utilizing such of the statutory provisions which are no more available to the BDA in terms of Section 36 of the BDA Act as a consequence of the operation of Section 27 of the BDA Act.
132. The implication is that the passing of the award in the year 2010 is an action without the support of Section 12 of the LA
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WP No. 55159 of 2014 Act and likewise taking of possession thereafter also in April 2010 under section 16 of the LA Act are both actions without support of law and cannot be sustained. Therefore, there is no more possibility in law for the BDA to take any coercive action as against persons found to be in possession of this survey number for the purpose of taking possession of this land whether by the State Government or by the BDA for the further implementation of the scheme as the scheme itself has lapsed and the very acquisition was only for the purpose of implementation of the scheme.
133. With the admitted position being that subject land had not yet been taken possession of before the scheme lapsed in terms of section 27 of the BDA Act, the land has never vested in the State Government and in respect of such lands which have not vested in the State Government prior to lapsing of the scheme and there being no possibility of implementation of the scheme thereafter and also there being no possibility to continue the acquisition proceedings on and after the stage of issue of declaration under Section 19[1] of the BDA Act, it is inevitable that even the preliminary and final Notifications under Section 17[1] and 19 of the BDA Act have also to be quashed inevitably in respect of such lands which had not vested in the State Government before the lapsing of the scheme and it is as though no acquisition proceedings had ever taken place in respect of such lands.
134. Though the question may arise as to the consequence that befalls on such of those lands which had already been taken
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WP No. 55159 of 2014 possession of and had vested in the State Government, prior to the lapsing of the scheme, such a situation not arising in the present Writ Petitions, it is not necessary to discuss that legal position for deciding these Writ Petitions as insofar as the present Writ Petitions are concerned, it will become an exercise in academics.
136. Though there is considerable divergence of judicial opinion in understanding the phrase 'substantial implementation of the scheme', by no stretch of imagination or by no stretch of elongation of the limits of law, an implementation of the scheme in respect of only about one-fifth of the original land area and that too 23 years after the issue of the preliminary Notification can ever be taken as a substantial implementation of the scheme as in the present case. Whether this Court expressly issues a declaration in this regard or not, it has already happened due to the operation of law and if at all it is only in recognition of this legal position, the further consequence are to be noticed and appropriate orders passed in the context. Petitioners claiming that they have acquired interest in the subject lands subsequent to lapsing of the scheme or in the vicinity there about, it cannot also be said that they have no locus to maintain the present Writ Petitions as discussed earlier and cannot be denied an appropriate order by merely throwing out the petition by this Court shutting eyes to the operation of law.
9.16. Relying upon the same, he submits that atleast more than 50% of the work is required to have
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WP No. 55159 of 2014 been completed for inferring substantial compliance with the scheme. In the present case, there being less than 10% implementation, it cannot be said to be substantial compliance.
9.17. He refers to the decision in the case of Meenakshi Thimmaiah vs. State of Karnataka reported in ILR 2010 KAR 62 more particularly Para 27 thereof which is reproduced hereunder for easy reference:
27. In the instant cases neither the Deputy Commissioner nor the Assistant Commissioner of the concerned Revenue sub-
division took possession of the acquired lands. On the other hand, from the copies of the Mahazars produced by the MUDA it is seen that the Special Revenue Inspector claims to have taken possession of the acquired lands. He is not authorised to take possession of the acquired lands. It is well settled position law as laid down in the Apex Court in the case of Babu Vergheese v. Kerala State Bar Council [(1999) 3 SCC 422 : AIR 1999 SC 1281.] that when, a statute prescribe certain things to be done by Statutory Authorities in a particular manner, the same has to be done in that manner only or not at all. Since the Act authorise only the Deputy Commissioner to
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WP No. 55159 of 2014 take possession, he alone has to take possession of the acquired lands and not the Special Revenue Inspector. That apart, the petitioners/owners have not signed the so called mahazars. From whom possession is taken by the Revenue Inspector is not forthcoming. The mahazars are signed by some signatories whose identity is not known. The possibility of obtaining signatures of some persons visiting the office cannot be ruled- out. Therefore, it has to be held that possession of the acquired lands were not taken over from the petitioners in accordance with law. Consequently, Notification issued under Section 16(2) of L.A.Act has no value. In other words, by mere issuance of such Notification it cannot be concluded that possession of acquired lands was taken in accordance with law.
9.18. Relying upon the same, he submits that when the identity of the signatory to mahazar are not established, the possibility of obtaining signature of some persons visiting the office of the BDA cannot be ruled out and therefore, he submits that the notification issued under Section 16(2) of the L.A Act has no value inasmuch as the possession is supposed to have been taken over prior to the passing of an
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WP No. 55159 of 2014 award which is impermissible. He further contends that all these documents have been created at the behest of the BDA. There being no basis for the same and as such, those documents cannot be referred to or relied upon by the BDA.
9.19. He refers to the decision of this Court in Sri. H.C. Muthappa Reddy & Others vs. The State of Karnataka & Others in W.P.No.17421 of 2012 dated 16.12.2013 more particularly Para 13 thereof which is reproduced hereunder for easy reference:
13. However, in the facts and circumstances of the case, the sequence of events would indicate that there is hardly a substantial development of the layout, as suggested.
Out of a total extent of 388 acres 98 guntas of land in Hulimavu Village and 174 acres 25 guntas of land in Arakere Village, which were originally notified, admitted status of development of the layout is to the extent of 31 acres 2 guntas in Hulimavu Village and 7 acres 20 guntas in Arakere Village and therefore the contentions that there is substantial implementation of the scheme, is not acceptable.
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WP No. 55159 of 2014 9.20. He submits that this Court has already taken cognizance of the non-implementation of the scheme and lapsing of the scheme and has held that the scheme is lapsed, but however restricted the same to the petitioners therein. He submits that the said benefit is required to be extended to the petitioners here also since lapsing of the scheme would only amount to lapsing of the entire scheme and not lapsing of a scheme with reference to a particular person/petitioner.
9.21. He submits that there are various lands abutting the lands of the petitioners which have been de-notified by issuance of necessary notification under section 48 of the L.A Act. When the abutting lands have been denotified, he submits that, the continuation of acquisition of lands of the petitioners is improper and is
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WP No. 55159 of 2014 violative of Article 14 of the Constitution of India and therefore, the reliefs which have been sought for are required to be granted.
10. Sri. Ashok Haranahalli, learned Senior counsel appearing on behalf of Respondents 2 and 3 made the following submissions:
10.1. The writ petition is completely frivolous and an abuse of process of Court. The earlier Writ Petition filed by the father of the petitioner in WP No.19288/1990 challenging the acquisition having been dismissed, the present petition cannot be sustained.
10.2. There is another writ petition filed Sri. Rama Reddy vs. The Commissioner in WP No.19877/2007 dated 16.8.2010, wherein the petitioner had taken up the very same contentions that the scheme has lapsed. This Court having come to a conclusion that there
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are no records, which had been produced by the petitioner therein, dismissed the same and as such raising of the said issue is barred by the principles of res-judicata and therefore, the Writ Petition is required to be dismissed. 10.3. Though this Court in various Writ Petitions held that the scheme to have been lapsed in respect of the petitioners' land in those matters, those orders are only for the petitioner/s in those petitions and the present petitioners cannot take advantage of the same. Insofar as petitioners are concerned, he submits that the possession of the property has been taken and notification under Section 16(2) of the Land Acquisition Act was issued on 31.05.1994. Hence, questioning the same after dismissal of WP No.19877/2007 would not arise. 10.4. The possession having been taken over which has also been handed over to the Police
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WP No. 55159 of 2014 Department for establishment of a Police Station and designating the said land as a civic amenity, possession certificate produced by the petitioners themselves at Annexure-U1 dated 19.05.2008 indicates such hand over of possession in furtherance of which, a civic amenity site lease agreement has also been executed in favour of the Governor of Karnataka, represented by the Police Inspector and the said lease having been registered would establish not only that the possession has been handed over to the Police Department, but also that the land has been designated as a civic amenity and thereafter has been put to use as such.
10.5. The petitioners cannot now contend that there is a lapse of the scheme when the land of the petitioners has been put to use. The allotment having been made in a proper manner, the said
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WP No. 55159 of 2014 allotment cannot be challenged in the present proceedings, more so when the present proceedings is not a public interest litigation but a private interest litigation. It is also not the case of the petitioners that the petitioners had applied for a civic amenity site. Thus, the petitioners have no personal interest in the civic amenity site, which can be challenged in the present proceedings by the petitioners. 10.6. He relies upon the decision of the Division Bench of this Court in the case of Sri. Anthony Reddy, Since Deceased by his LR's and Another Vs. The State of Karnataka, by Its Secretary reported in ILR 2020 KAR 1348 more particularly Para 21 thereof, which is extracted hereunder for easy reference:
ALTERNATE PLEAS BY BDA:
21. (a) At this stage, the Learned Senior Counsel appearing for the respondent-BDA contends that even assuming that the Scheme is held to have
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WP No. 55159 of 2014
lapsed or could not be implemented or has been abandoned, that by itself would not automatically render the acquisition proceedings to be quashed. In support whereof, he relies on the Judgment of the Hon'ble Supreme Court in the case of Offshore Holdings Private Limited v. Bangalore Development Authority (supra) with reference to paragraphs 37 to 40. It is therefore contended that, as held by the Hon'ble Supreme Court in paragraph 38, the acquisition would not lapse or terminate as a result of lapsing of the Scheme under Section 27 of the BDA Act. That since vesting of the land has taken place; the status of the property is incapable of being altered by fiction of law either by the State Act or by the Central Act.
(b) As already held hereinabove, so far as the question of vesting of the lands are concerned, we have categorically come to the conclusion that there is no vesting of land that has taken place in favour of the State or the BDA. Therefore, the decision is not applicable to the facts and circumstances involved herein.
(c) The Scheme of the BDA Act postulates that the acquisition of land could only be done on a Scheme being propounded by the BDA. The Scheme being sanctioned by the State, an acquisition could take place. Once it is held that the acquisition has lapsed and it is also held that there is no vesting of land in the State, necessarily the acquisition cannot stand.
(d) It is the further contention of the Learned Senior Counsel for the respondent-BDA that even if it is to be held that the scheme has lapsed, the BDA is entitled to propound yet another scheme for the utilisation of the petitioners' land.
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(e) We are unable to accept such a contention. When once the scheme is held to have lapsed and when in the given facts and circumstances of this case, the possession has also not been taken, the question of the BDA retaining possession of the property would not arise for consideration. By the scheme of the Act, the lands can be acquired only on a scheme being propounded by the BDA. No land can be held by the State or the BDA in the absence of any scheme. Therefore, the holding of the land by the BDA is illegal. Furthermore, the acquisition is always pursuant to a scheme. A scheme cannot be propounded of the land which the BDA according to them, continue to be in possession of. Once the Court holds that the scheme has lapsed and the acquisitions are quashed, the possession of the lands by the State or the BDA becomes unauthorised. It cannot retain the land sans any power in law. The land could be retained by the State/BDA only in a lawful manner. When once the acquisition has been quashed and the scheme is held to have lapsed, neither the State nor the BDA can hold on to the lands.
(f) It is further contended by the Learned Senior Counsel for the respondent-BDA that when once it is held that the Scheme has lapsed, then the Government is entitled to use the land or to direct the BDA to use the land for any purpose that it so orders. Therefore, it is contended that the State, is entitled to use the land for any purpose as it deems fit or transfer it to the BDA, as the case may be. Therefore, the State is entitled to exercise such power as vested in it under Section 37 of the BDA Act.
(g) Firstly, as held hereinabove, the question of vesting has since been answered by us by holding that there is no vesting of land or taking of possession from the petitioners. Furthermore,
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WP No. 55159 of 2014 assuming that the vesting of land has taken place, only then the question of re-vesting could be considered. However, in view of the finding recorded hereinabove, on possession we are of the view that the proposed action of the State, would be unauthorized in law and opposite to the facts of the case. The question of the State retaining the land would not arise for consideration in view of the fact that the acquisition of the land is held to be bad.
(h) If the contention of the Learned Counsel for the BDA is to be accepted, the same would lead to unacceptable conclusions. If the acquisition is quashed and the scheme is held to have been lapsed by a Court of law, the same cannot be retained in order to propound yet another scheme. Assuming yet another scheme is propounded and the same is challenged and the acquisitions is held to be bad, then based on the contentions of the Learned Counsel for the BDA they can once again hold lands to propound another scheme. This situation would never end at all. However, that is not how law operates. When an acquisition is challenged, it receives a logical end on a final order being passed by a Court of law. The question of retention of lands to create yet another acquisition, cannot be accepted. There is no provision in law to enable the State or BDA to retain a land, wherein the acquisition has been quashed and the scheme is held to have lapsed. Once a Court of law passes an order, the same attains finality, of course subject to the appellate jurisdiction or interference by a higher authority. The same does not and never can be meant to be read, that the State or the BDA can hold on to the lands forever.
(i) Furthermore, the entire contention becomes invalid since it is based on an assumption that the
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WP No. 55159 of 2014 State/BDA continue in possession of the land. It is on the basis of this assumption that a contention is being advanced. When a categorical finding has been recorded that the State/BDA is not in possession of the land, the contention of retention of such lands, therefore, becomes misplaced. Therefore, the basis of the very contention does not exists to advance such a contention. 10.7. Possession of petitioners' land has been taken, layout is formed and the sites are allotted to several allottees and a civic amenity site has been allotted to the Police Department who are all in peaceful possession and enjoyment of the entire land. Hence, there is no question of scheme having been lapsed.
10.8. The petitioners had filed O.S.No.5659/2015 seeking for permanent injunction against the Police Department. The application for temporary injunction has been rejected, aggrieved by which MFA No.5442/2015 has been filed which is pending, wherein an undertaking has been given by the Government
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WP No. 55159 of 2014 Advocate that the Police Department would not put up any permanent structure.
10.9. On these grounds, he submits that the possession of the property is with the Police Department. He submits that preliminary notification was issued on 08.09.1987 and final notification was issued on 28.07.1990. The award has been passed and the compensation amount has been deposited in the City Civil Court. A mahazar had been drawn on 16.11.1993 and the possession was taken over by issuing a notification under Section 16(2) of L.A Act and thereafter, the land was handed over to the Engineering Department of the BDA for formation of the layout. The property having been acquired and possession having been taken over and thereafter allotted to the Police Department, the question of lapsing of the Scheme would not arise.
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WP No. 55159 of 2014 10.10. He relies on the decision of State of Rajasthan vs. D.R.Laxmi reported in 1996 (6) SCC 445 to contend that after possession has been taken over, the land would vest with the State free from all encumbrances and there is no provision to divest title from the State. 10.11. Under the preliminary notification 805 acres 21 guntas of Hulimavu and Arekere villages were sought to be acquired. The final notification has been issued for total extent of 562 acres and 34 guntas and layout formed in the said land. Thus, it cannot be said that there is substantial non-compliance of the scheme.
10.12. An award was passed on 04.04.1994 and compensation amount of Rs.2,28,287/- has been deposited before the Principal City Civil Court, Bangalore in LAC No.158/1995 on 07.10.1995 and possession having been taken over and mahazar was drawn on 06.11.1990,
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WP No. 55159 of 2014 award notice was issued on 03.11.1993, the amended award was passed on 04.04.1994. After formation of the layout and allotment of the residential site, the entire layout has been transferred to the BBMP for maintenance on 05.05.2007.
10.13. He refers to the decision of the Apex Court in the case of Offshore Holdings Private Limited vs. Bangalore Development Authority and Others reported in 2011 (3) SCC 139 more particularly Paras 38 and 39 thereof, which is extracted hereunder for easy reference:
38. On a conjunctive reading of the provisions of Sections 27 and 36 of the State Act, it is clear that where a scheme lapses, the acquisition may not. This, of course, will depend upon the facts and circumstances of a given case. Where, upon completion of the acquisition proceedings, the land has vested in the State Government in terms of Section 16 of the Land Acquisition Act, the acquisition would not lapse or terminate as a result of lapsing of the scheme under Section 27 of the BDA Act. An argument to the contrary
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cannot be accepted for the reason that on vesting, the land stands transferred and vested in the State/Authority free from all encumbrances and such status of the property is incapable of being altered by fiction of law either by the State Act or by the Central Act. Both these Acts do not contain any provision in terms of which property, once and absolutely, vested in the State can be reverted to the owner on any condition. There is no reversal of the title and possession of the State. However, this may not be true in cases where acquisition proceedings are still pending and land has not been vested in the Government in terms of Section 16 of the Land Acquisition Act.
39. What is meant by the language of Section 27 of the BDA Act i.e. "provisions of Section 36 shall become inoperative", is that if the acquisition proceedings are pending and where the scheme has lapsed, further proceedings in terms of Section 36(3) of the BDA Act i.e. with reference to proceedings under the Land Acquisition Act shall become inoperative. Once the land which, upon its acquisition, has vested in the State and thereafter vested in the Authority in terms of Section 36(3); such vesting is incapable of being disturbed except in the case where the Government issues a notification for revesting the land in itself, or a corporation, or a local authority in cases where the land is not required by the Authority under the provisions of Section 37(3) of the BDA Act.
10.14. By relying on the said decision, he submits that the lapsing of the Scheme would not by itself
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WP No. 55159 of 2014 negate the acquisition. The acquisition would continue in the present case since the acquisition proceedings have been completed and the land vests with the State Government mere lapsing of the scheme would not make the acquisition itself bad and the land would continue to vest with the State for use by the State for any particular purpose. 10.15. The property having been designated as a civic amenity, the usage of the said property for the said purpose is permissible even if there is a lapse of the Scheme. This being an alternative submission, he submits that even if this Court were to come to a conclusion that the Scheme had lapsed, the acquisition cannot be quashed and the State would be entitled to make use of the land for any purpose that it intends to. Based on the above submissions, he submits
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WP No. 55159 of 2014 that the Writ Petition is required to be dismissed.
11. Sri.Nityananda, learned AGA adopts the submission of Sri.Ashok Haranahalli learned Senior Counsel and further submits that the State has sanctioned the scheme propounded by the BDA, in furtherance thereof issued the preliminary notification and final notification. Two acres of the land of the petitioners has been earmarked as civic amenity and allotted to the police department for construction of a police station and quarters for the police. The present police station is in a dilapidated condition and as such, a new police station is required to be built. On the above grounds, he submits that the petition is required to be dismissed.
12. Heard Sri.A.S.Ponnanna, learned Senior Counsel for the petitioners, Sri.Nityananda K.R., learned AGA for respondents No.1, 4 and 5 and Sri.Ashok
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WP No. 55159 of 2014 Haranahalli, learned Senior Counsel for respondents No.2 and 3 and perused the papers.
13. On the basis of the submissions made, the points that would arise for determination by this Court are:
1. Whether a Writ Petition earlier filed contending that the Scheme had lapsed in terms of Section 27 of the BDA Act having been dismissed, can petitioner file another Writ Petition on similar as also on additional grounds?
2. Whether a finding that the Scheme is lapsed in a proceeding would be restricted to the petitioner therein or would it be a declaration in rem?
3. Whether lapsing of the Scheme in respect of the land of the petitioner would also invalidate the acquisition made of the land of the petitioner?
4. Whether lapsing of the Scheme would invalidate the designation of the property as a civic amenity and all further actions taken in connection thereto?
5. Whether in the facts of this case, the Scheme has lapsed insofar as the land of the petitioner is concerned?
6. What order?
14. I answer the above points as under:
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15. Answer to Point No.1: Whether a Writ Petition earlier filed contending that the Scheme had lapsed in terms of Section 27 of the BDA Act having been dismissed, can petitioner file another Writ Petition on similar as also on additional grounds?
15.1. It is not in dispute that the petitioners had filed a Writ Petition in W.P.No.19877/2007 contending that the Scheme had lapsed. This Court dismissed the said Writ Petition on 16.08.2010 on the ground that there are no relevant materials produced by the petitioner to point out substantial lapse of the Scheme. 15.2. Whether a Scheme has lapsed or not, in my considered opinion, is a continuing cause of action inasmuch as if a petition is filed for declaration that the Scheme has lapsed, at the end of 10 years, which came to be dismissed and another petition is filed at the end of 15 years placing on record that there is no substantial compliance with the Scheme, then this Court would be well within its powers to
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WP No. 55159 of 2014 exercise jurisdiction to declare the Scheme has lapsed in terms of Section 27 of BDA Act. If however, the court were to come to a positive conclusion that the scheme has been implemented the same would constitute res judicata, since once a scheme is stated to have been substantially implemented no further proceeding could be filed stating that the scheme has not been substantially implemented.
15.3. Merely because a Writ Petition was dismissed on an earlier occasion for lack of relevant material, in my considered opinion cannot amount to a decision having been rendered on merits, there being no finding as regards whether the scheme has been implemented or not, if implemented whether it is substantially implemented or not and as such the same would not disentitle the petitioners to raise the
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WP No. 55159 of 2014 same issue once again since until and unless there is a substantial compliance of the Scheme, the petitioners would have a continuing cause of action to agitate the issue as regards the non-compliance with the Scheme. The situation is akin to a suit for injunction whenever there is any fresh cause of action to file a suit for injunction, the dismissal of an earlier suit would not come in the way of a fresh suit so long as the fresh suit is based on a fresh cause of action. This court in UFM Sudarshan Manjunath Hegde Vs. UFM Satyanarayan Govind Hegde in RSA No 5125 of 2013 more particularly para 3 thereof has observed as follows:
3. It is needless to emphasize that the cause of action to file an injunction suit is a continuous cause of action. If at all the plaintiff were to establish that there is a subsequent interference he can file one more suit 15.4. Hence, I answer Point No.1 by holding that the earlier Writ Petition filed in W.P.No.19877/2007
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which came to be dismissed on 16.08.2010 on the ground that there are no relevant materials placed on record would not act as a res judicata and/or bar the petitioners from filing the present Writ Petition.
16. Answer to Point No.2: Whether a finding that the Scheme is lapsed in a proceeding would be restricted to the petitioner therein or would it be a declaration in rem?
16.1. The above point gives raise to a peculiar situation inasmuch as the lapsing of the Scheme though appears to be a declaration in rem but would be only restricted to the petitioners since the petitioners have been able to establish that the petitioners' land has not been used for implementation of the Scheme. However, the Scheme would have to be viewed in its entirety inasmuch as the total extent of land sought to be acquired under the preliminary notification, the land acquired
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WP No. 55159 of 2014 under the final notification, the land as regards which an award has been passed, extent of land taken possession, and extent of land handed over to the Engineering Department and finally the extent of land in which the layout has been formed by implementing the Scheme would be relevant to be taken into consideration.
16.2. If there is a substantial compliance of the Scheme, then there would be no requirement to go into the facts as to whether the particular land of the petitioners has been utilized or not since the same would be utilized in future in terms of the Scheme.
16.3. However, if there is no substantial compliance with the Scheme, then there would be no purpose in the Court extending the time for the BDA to implement the Scheme by refusing to
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WP No. 55159 of 2014 exercise the powers under Section 27 of the BDA Act.
16.4. This would however not affect the areas where the Scheme had already been implemented, a layout already formed and allotted to the intending allottees since the work done by the BDA ought not to be disturbed by exercising powers under Section 27 of the BDA Act. 16.5. Thus, whenever any order is passed under Section 27, though a reference to the entire Scheme is made, the declaration is made only in respect of the land of the petitioners concerned. The finding in respect of lapsing of the Scheme in that matter would however be relevant to be considered by a Court of law while dealing with any other acquisition under the very same notification.
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WP No. 55159 of 2014 16.6. The finding of facts unless shown that there is a change in circumstances and/or that the BDA has implemented the Scheme more than what was stated in the earlier judgment, the finding in the said judgment as regards the implementation of the Scheme would hold valid in any subsequent proceedings.
16.7. Thus, in all the matters which have been cited by the learned counsel for the petitioners, this Court has specifically restricted the lapsing of the Scheme to the land of the petitioners in that particular matter and there is no declaration as such that the Scheme has lapsed for the entire land acquired. In view thereof, I am of the considered opinion that the petitioners cannot by relying on those judgments contend that the Scheme as a whole has lapsed. It would always be open for the petitioner in a particular matter to establish as regards both substantial non-compliance of the
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WP No. 55159 of 2014 Scheme in its entirety as also non- implementation of the Scheme in respect of the lands of the petitioners concerned. 16.8. Hence, I answer Point No.2 by holding that the finding that the Scheme has lapsed in a Writ Petition would be restricted to the petitioner/s to that petition and would not amount to a declaration in rem.
17. Answer to Point No.3: Whether lapsing of the Scheme in respect of the land of the petitioner would also invalidate the acquisition made of the land of the petitioner?
17.1. Section 27 of the BDA Act reads as under:
27.Authority to execute the scheme within five years: Where within a period of five years from the date of the publication in the Official Gazette of the declaration under sub-section (1) of Section 19, the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative.
17.2. Section 36 of the BDA Act reads as under:-
36. Provisions applicable to the acquisition of land otherwise than by agreement. - (1) The acquisition of land under this Act otherwise than by agreement within or without the Bangalore Metropolitan Area shall be regulated by
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WP No. 55159 of 2014
the provisions, so far as they are applicable, of the Land Acquisition Act, 1894.
(2) For the purpose of sub-section (2) of section 50 of the Land Acquisition Act, 1894, the Authority shall be deemed to be the local Authority concerned.
(3) After the land vests in the Government under section 16 of the Land Acquisition Act, 1894, the Deputy Commissioner shall, upon payment of the cost of the acquisition, and upon the Authority agreeing to pay any further costs which may be incurred on account of the acquisition, transfer the land to the Authority, and the land shall thereupon vest in the Authority.
17.3. A reading of Section 27 of the BDA Act would indicate that if there is a substantial non- compliance of the Scheme for a period of 5 years and thereafter, a Scheme would be lapsed, and the provision of Section 36 of the BDA Act would become inoperable.
17.4. The contention urged by the learned counsel for the petitioners is that in the present case, the Scheme would be required to be held to be lapsed and in view thereof since Section 36 of the BDA Act is made inoperable, then the very
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WP No. 55159 of 2014 acquisition would be negated and as such, the acquisition notification would have to be quashed.
17.5. Recently, the Hon'ble Apex Court in Offshore Holdings's case supra has held that a declaration that the Scheme has lapsed under Section 27 of the BDA Act would have no effect on vesting of the land in the State and the same cannot be reverted to the owner on any condition. But however the Hon'ble Apex Court has held that where acquisition proceedings are still pending and the land has not been vested in the Government in terms of Section 16 of L.A.Act, the said ruling would not apply. 17.6. Thus, it is clear from the decision of the Hon'ble Apex Court that it is only when the land is vested in the State that the acquisition cannot be quashed while declaring the Scheme to have lapsed. If the possession is not vested with the
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WP No. 55159 of 2014 State, then the declaration of the Scheme having failed, would also result in quashing of the acquisition proceedings.
17.7. This aspect has been considered by this Court in Anthony Reddy's case supra wherein it has been categorically held that once a Scheme is held to have lapsed, there is no provision in law to enable the State or the BDA to retain the land where the Scheme is declared to have been abandoned. This Court went on to hold that once a Scheme is held to have lapsed neither BDA nor the State can propound another Scheme by holding on to the land since the same would result in a never ending process and as such, while declaring the Scheme to have lapsed, quashed the acquisition as well.
17.8. In the above circumstances, when the acquisition proceedings are not completed, in
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WP No. 55159 of 2014 that the possession has not been taken and vested in the State, I am of the considered opinion that the lapsing of the Scheme would entail the quashing of the acquisition since on a declaration under Section 27 of the BDA Act, Section 36 of the BDA Act is made inoperative. 17.9. Thus, I answer Point No.3 by holding that the lapsing of the Scheme in respect of the land of the petitioners would also invalidate the acquisition in the event of possession not having been taken over and vested with the State. The lapsing of the Scheme in respect of the land of the petitioners would not invalidate the acquisition if possession is taken over and vested with the State.
18. Answer to Point No.4: Whether lapsing of the Scheme would invalidate the designation of the property as a civic amenity and all further actions taken in connection thereto? 18.1. The designation of the civic amenity is on the basis of the Scheme being implemented. If the Scheme were to be declared as lapsed insofar
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WP No. 55159 of 2014 as the land of the petitioners' is concerned, even if in the Scheme or otherwise the land of the petitioners are shown to be a civic amenity that is to say the designation and/or attribution of the property of the petitioners or part thereof as a civic amenity being in terms of the Scheme, the lapsing of the Scheme, in my considered opinion, would invalidate the designation and/or demarcation of the property as a civic amenity since the Scheme insofar as that land has lapsed and does not exists. 18.2. The contention of the petitioners is that the land of the petitioners had been reserved for housing purposes and civic amenity was not shown in the Scheme and nor was it earmarked as such. This contention has not been refuted by the respondent-BDA by producing the approved layout plan except to contend that
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WP No. 55159 of 2014 the land was suitable for a police station and as such, it was allotted to the police station. 18.3. There is nothing which is placed on record to establish that the land of the petitioners was infact reserved for a civic amenity. Thus, without designation of the land as a civic amenity, the question of allotment of the same would also not arise for the respondent to claim benefit of the said allotment.
18.4. A Scheme when formulated by the BDA contains the details of the residential areas, parks, open spaces, civic amenities, roads, drainages, water tanks etc. Thus, it is under the Scheme that a particular area is denoted to be one of the above including a civic amenity. 18.5. When a Scheme itself is lapsed unless a new Scheme comes into play, the designation of a particular area as a civic amenity, in my
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WP No. 55159 of 2014 considered opinion, if not already implemented, would invalidate such designation. 18.6. In the present case, admittedly, the designation of a civic amenity has not been implemented. Even though it is contended that the civic amenity site has been allotted to the police department, I am of the considered opinion that the requirements under Section 3 of the Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989 (for short, 'Rules 1989') have not been followed. 18.7. Though there is no restriction to allot a civic amenity site to a governmental authority, the requirement of Section 3 of Rules, 1989 not having been followed, the allotment is non-est. 18.8. Apart there from, admittedly, the land is sought to be allotted to the police department for establishing a police station and police
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WP No. 55159 of 2014 quarters. The quarters for police personnel will not be a civic amenity for the benefit of the residents of the area. If at all, the said quarters are only for the benefit of police personnel who will be allotted with the said quarters, the benefit is also not to the police department as a whole. The police station on the contrary could be said to be a civic amenity and allotment of an area designated as a civic amenity could be made for the purpose of a police station, admittedly the police station has been now constructed in some other land. Hence, the land is only required for construction of police quarters which is not a civic amenity. 18.9. In the present case, the allotment as claimed by the respondents without even designation under Section 3 of Rules of 1989 is for the construction of a police station and police quarters which as aforesaid does not meet the
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WP No. 55159 of 2014 legal requirements and as such, even the allotment is bad in law.
18.10. Thus, lapsing of the Scheme in my considered opinion would invalidate the designation of the property as a civic amenity and all further actions taken in connection thereto, if the Scheme is not implemented in respect of that particular land.
18.11. I answer point no. 4 by holding that lapsing of the Scheme in respect of a particular property would invalidate the designation of the property as a civic amenity and all further actions taken in connection thereto.
19. Answer to Point No.5: Whether in the facts of this case, the Scheme has lapsed insofar as the land of the petitioner is concerned? 19.1. If the Scheme is declared to have lapsed and Section 36 of the BDA Act is made inoperative, when the possession is not taken, the
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WP No. 55159 of 2014 acquisition would also have to be quashed. This gives raise to two situations, one as regards the Scheme having been lapsed and two as regards the acquisition being quashed.
19.2. A preliminary notification was issued as regards 524 acres 9 guntas in Hulimavu village. The final notification was issued only to an extent of 388 acres 9 guntas. Out of which, 117 acres 1 gunta was handed over to the Engineering Division and ultimately a layout was formed only in respect of 31 acres 2 guntas in Hulimavu village.
19.3. Out of 231 acres 21 guntas of land which was notified for acquisition in the preliminary notification in respect of Arekere village, the final notification was issued for 174 acres 25 guntas. The land handed over to the Engineering Section was only 45 acres 4
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WP No. 55159 of 2014 guntas. Out of which, the layout has been formed to an extent of 7 acres 20 guntas. 19.4. These facts are not in dispute. These facts have been adverted to in various decisions rendered by this Court in similar challenges. Nothing is placed on record in these proceedings to indicate or establish otherwise. 19.5. It is in that background that this Court, in those decisions, has categorically held that the Scheme has lapsed in view of no substantial compliance and/or implementation made thereof and quashed the acquisition notification on coming to a conclusion that the Scheme had not been implemented as regards the lands of the petitioners in those matters since the petitioners continue to be in possession, occupation and enjoyment thereof.
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WP No. 55159 of 2014 19.6. The only question that is required to be answered by this Court in the present matter is as regards whether possession of the land of the petitioners has been taken and if the same has taken possession of, has it vested with the State government and whether the Scheme has been implemented insofar as the land of the petitioners are concerned. This Court having already come to a conclusion that there is no substantial compliance of the Scheme as such. 19.7. The contention of the respondent is that a mahazar has been drawn on 06.11.1990, award notice having been issued on 03.11.1993, possession mahazar was drawn on 16.11.1993, and thereafter amended award was passed on 04.04.1984.
19.8. It is claimed that the possession notice was issued to Chikkapapaiah. However, in terms of Annexure-W11, Chikkapapaiah had expired on
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WP No. 55159 of 2014 27.05.1983 and hence, the question of Chikkapapaiah refusing the notice would not at all arise, more so, when the successors in interest of the said Chikkapapaiah viz., Sri.Thimmaiah and Sri.Ventappa had filed Writ Petitions before this Court in W.P.No.19277/1990, which have been disposed of on 19.09.1996. Hence, the question of issuing an award notice addressed to a dead person and claiming that the noticee had refused to accept service of notice is a clear falsehood on the part of the respondents, which now they cannot take advantage of. 19.9. In the above background, I am of the considered opinion that there is no possession which has been taken by the respondent-BDA. 19.10. In the year 2007, the engineering officer of the BDA directed for demolition of the structure constructed on the land vide Annexure-F on
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WP No. 55159 of 2014 21.11.2007, which came to be challenged by the petitioners in W.P.No.19877/2007. Thus, even as on the year 2007, the petitioners were in possession of the property in the construction that they have put up by themselves.
19.11. It is only thereafter in the year 2008, that the Director General and Inspector General of Police made a request for allotment of the land which was so decided to be allotted vide resolution dated 24.04.2008 and allotment letter dated 10.09.2013 issued. Subsequent thereto, a lease agreement dated 24.01.2014 was executed.
19.12. In the above circumstances, the award notice and the endorsement thereon not being believable and being demonstrated to be false, the construction being in existence till the year 2007 and the petitioners being in possession till
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WP No. 55159 of 2014 the year 2007, as per the order by the Engineering Officer of the BDA dated 21.11.2007, it is clear that the BDA has not taken possession of the land in the year 1993 as claimed and the possession continued to be with the petitioners.
19.13. Thus, the land not having been taken possession of and vested with the State and handed over to the BDA, I am of the considered opinion that the case of the petitioners would come under exception to Offshore Holdings's case which has been detailed out in Anthony's case requiring the Scheme having been lapsed and the acquisition to be quashed. 19.14. Hence, I answer point no.5 by holding that in the facts of this case, the Scheme has lapsed insofar as the land of the petitioner is concerned, possession not having been taken, acquisition would also have to be quashed.
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WP No. 55159 of 2014
20. Answer to Point No.6: What order?
20.1. Hence, I pass the following:
ORDER i. The Writ Petition is allowed.
ii. It is declared that the scheme viz., "Byrasandra, Tavarekere and Madivala Layout"
(BTM Layout 6th Stage) propounded by the BDA and as approved by the State has lapsed in so far as the land of the petitioner in Sy No. 80/1 situate at Hulimavu Vullage, Bannerghatta Road, Bangalore South Taluk, Bangalore measuring 2 Acres 4 Guntas is concerned. iii. Possession of the property not having been taken, Section 36 of the BDA Act is declared inapplicable to the land of the Petitioner. iv. Consequently, the preliminary notification bearing No.BDA/ALAO/5/18/87-88 dated 08.09.1987 issued by respondent No.2 and final notification bearing No.HUD/231/MNX/90
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WP No. 55159 of 2014 dated 28.07.1990 issued by respondent No.2 in so far as the land of the petitioner in Sy No. 80/1 situate at Hulimavu Vullage, Bannerghatta Road, Bangalore South Taluk, Bangalore measuring 2 Acres 4 Guntas is concerned is quashed.
v. Consequently, a certiorari is issued, the resolution dated 24.04.2008 passed by the respondent No.2-BDA vide Subject No.433/08 as per Annexure-U and also the letter of allotment of civic amenity site dated 19.05.2008 issued by respondent No.2 as per Annexure-U1 are quashed.
Sd/-
JUDGE Prs*