Karnataka High Court
Mr Muniraju vs The Bangalore Development Authority on 17 August, 2017
Author: B.S.Patil
Bench: B.S.Patil
WP 43320-321/2016
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF AUGUST, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.Nos.43320-321/2016 (BDA)
BETWEEN:
1. Mr. Muniraju,
Aged about 44 years,
S/o late Nanjundappa.
2. Mr. Manjunath,
Aged about 35 years,
S/o late Sanjeevappa.
Both are residing at No.103,
Valagerahalli village,
Near last Bust Stop,
Kengeri Upanagara,
Bangalore - 560 060. ..PETITIONERS
(By Sri V.R.Sarathy, Adv.)
AND:
1. The Bangalore Development Authority,
Chowdaiah Road,
Kumara Park West,
Bangalore - 560 003,
Represented by its Commissioner.
2. The State of Karnataka,
Rep. by its Principal Secretary,
Department of Housing &
Urban Development,
Vikas Soudha,
Bangalore - 560 001. ..RESPONDENTS
WP 43320-321/2016
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(By Sri Narendra Gowda, Adv. for R-1;
Sri Vijaykumar A.Patil, AGA for R-2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT R-1 TO
ALLOT 100% (1,03,455 SQ. FT.) OF ALTERNATIVE LAND IN A WELL
DEVELOPED AREA EXCLUDING THE EXTENT OF LAND ALREADY
ALLOTTED & ETC.
THESE PETITIONS COMING ON FOR 'DICTATING ORDERS',
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. In these writ petitions, petitioners are seeking a writ of mandamus against respondent no.1 - Bengaluru Development Authority (for short, 'BDA') to direct them to allot 100% alternate land in a well developed area excluding the extent already allotted and for a further direction to execute sale deeds in respect of Site Nos.203/A and 204/A of Mathadahalli Further Extension in favour of the petitioners within a prescribed period and as also to pay damages for the loss suffered by petitioners from 2011 till date for having illegally and unauthorizedly utilized their lands bearing Sy. Nos.105/2, 105/3 and 107/1 ad measuring 2 acres 15 guntas situated at Valagerahalli village, Bengaluru South taluk.
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2. It is the case of the petitioners that their mother - late Jaymma was the absolute and lawful owner of the aforesaid properties. After her death, petitioners having inherited the same had become the absolute owners thereof. These lands were the subject matter of acquisition as per Preliminary Notification published under Section 17(1) & (3) of the Bangalore Development Authoirty Act, 1976 (for short, 'BDA Act'), dated 26.01.1989 for formation of Gnana Bharathi Layout. Pursuant to this notification, mother of the petitioners - late Jayamma filed objections before the BDA requesting to drop the acquisition proceedings. However, Final Notification dated 19.01.1994 was issued under Section 19(1) of the BDA Act.
3. The acquisition proceedings were challenged by the mother of the petitioners and father of petitioner no.2 by filing W.P.Nos.6564/1996 & 6565/1996. The acquisition was quashed by this Court vide order dated 07.10.1996 in respect of the lands in question with liberty reserved to the BDA to initiate fresh acquisition proceedings after WP 43320-321/2016 4 obtaining sanction from respondent no.2. By virtue of the liberty reserved, fresh notifications were issued acquiring several lands on 06.10.1997 and 07.10.1999. But the lands of the petitioners were not included in the said notifications. This is evident from the copies of the notifications produced at Annexures-E & F and there is no dispute with regard to the same.
4. However, without there being any acquisition, respondent no.1 - BDA and its officials have illegally utilized petitioners lands with effect from December 2011 onwards to build a multi-storeyed residential apartments. Petitioners objected for the same, but despite their protest, BDA has illegally deprived the petitioners of their valuable possession of the lands which were the source of livelihood for them. What was worse was, the BDA did not utilize the land for formation of Gnana Bharathi Layout, but for constructing a multi-storeyed residential apartments. Petitioners have been moving heaven and earth requesting the authorities to grant them alternate land in lieu of their valuable lands illegally occupied. BDA did not accede to WP 43320-321/2016 5 this request. Ultimately, on 03.02.2014 and 02.09.2014, the respondent - BDA issued an endorsement stating that petitioners lands were not covered under the acquisition proceedings. But by that time, multi-storeyed residential apartments had virtually reached finishing stage.
5. Petitioners contend that BDA has sold the apartments by collecting huge price. The aforesaid endorsement issued by the BDA are produced at Annexures-G & G1. That the lands of the petitioners were illegally and unauthorizedly utilized for constructing multi- storeyed residential apartments is not in dispute. Indeed, BDA has admitted this fact. It is for this reason only BDA on 16.02.2015 decided to allot 50% of alternate land in favour of the petitioners in a developed area based on the resolution passed by the BDA in this regard. The said resolution No.4/2012, no doubt, referred to unauthorized utilization of land for formation of roads, but not for constructing multi-storeyed residential apartments.
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6. Petitioners have made request to the respondent - BDA to allot 100% alternate land in lieu of their 2 acres 15 guntas unauthorizedly utilized for constructing multi- storeyed residential apartments. Copy of such representation dated 12.03.2015 is produced at Annexure- M. Respondent-BDA has not responded to the same. They have not even executed sale deeds in respect of Sites No.203/A and 204/A situated at Matadahalli Further Extension, which have been allotted as an alternate land to cover 50% of the occupied land belonging to the petitioners. In this background, aggrieved by the omission and commission on the part of the BDA, petitioners have approached this Court.
7. The main contention of the learned Senior Counsel appearing for the petitioners is, that the entire action of the BDA is highly illegal, arbitrary and violative of Article 300A and Article 31A of the Constitution of India. It is urged that the BDA has deprived the petitioners of their livelihood without recourse to law and by violating the rule of law, thereby putting the petitioners into serious loss, WP 43320-321/2016 7 damage and prejudice. He, therefore, urges that not only that BDA has to be directed to allot equal portion of alternate land in the same locality, but also that they have to be directed to pay adequate compensation for the loss suffered by the petitioners on account of highhanded and illegal acts of the BDA.
8. In a further development, the BDA has issued notices dated 05.07.2016 and 01.07.2016 through the Deputy Secretary-IV, BDA, calling upon the petitioners to return the allotment letters of the two sites. This was resisted by submitting a reply. This action of the BDA is also attacked as highly arbitrary and illegal.
9. Counsel for the BDA on his part, has addressed his arguments taking the court through statement of objections and also the affidavit dated 12.07.2017 filed by S.M.Mangala, Deputy Secretary, BDA. Indeed, the said affidavit was filed pursuant to a direction issued by this Court on 03.07.2017 to file such an affidavit placing on record details of the sites that BDA intended to allot to the WP 43320-321/2016 8 petitioners commensurate with the land lost by them. Operative portion of the said order dated 03.07.2017 reads as under:
"Hence, BDA is directed to file the affidavit of the competent authority, placing on record the details of the sites that BDA intends to allot to the petitioners commensurate with the land lost by the petitioners. BDA has to keep in mind the nature of the land and the location of the same which the petitioners have lost while coming forward with the proposal to allot alternative sites including those which have been already offered for being allotted to the petitioners. The same shall be done by 06.07.2017."
10. In the affidavit filed on 12.07.2017, the BDA has stated in paragraphs 3 to 7 as under:
"3. I state that, the Petitioners lands were acquired by BDA without notification and no compensation was paid to the Petitioners. The BDA has utilized the said lands for putting up residential apartments WP 43320-321/2016 9 without paying any compensation to the petitioners.
4. I state that, the BDA has offered the Petitioners for allotment of alternate sites by issuing a communication in the year 2015, however, the BDA has not followed the actual allotment of sites commensurate with the lands lost by the Petitioners.
5. I state that, on 03.07.2017 this Hon'ble Court has directed the BDA to file the affidavit of the competent authority, placing on record the details of sites that BDA intends to allot to the Petitioners commensurate with the land lost by the Petitioners and further directed the BDA to keep in mind the nature of land and the location of the land which the Petitioners have lost while coming forward with the proposal for allotment of alternate sites.
6. I state that, as per the order dated 03.07.2017 the BDA is in the process of identification of sites that are supposed to be allotted by the Petitioners, the same shall be identified by early next week and shall be WP 43320-321/2016 10 placed before this Hon'ble Court by 18.07.2017.
7. I state that, any order(s) of this Hon'ble Court shall be binding and that the same shall be acted upon by BDA within a period of 4 months from the date of the order."
11. On 21.07.2017, another affidavit was filed by the 'Authorized Officer' of the BDA one B.Sudha, who was working as ALAO in BDA stating that the lands belonging to the petitioners were indeed utilized by the BDA for constructing residential apartments and taking into account the total loss incurred by the petitioners and the current value of the Schedule Property, BDA will compensate the petitioners by paying compensation of Rs.3,19,66,541/- in respect of Sy. No.105/2B, Rs.2,20,45,890/- in respect of Sy. No.105/3B and Rs.4,18,87,191/- in respect of Sy. No.107/1, totally in a sum of Rs.9,58,99,622/-, that the same would be paid either in the form of cash or through sites in order to ensure speedy justice.
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12. It has to be stated at the outset that no basis is forthcoming in the affidavit for making such calculation. However, learned Counsel for the BDA submits that the amount calculated is based on the guideline value prevailing in the area. This offer has been stoutly rejected by the learned Senior Counsel Mr. P.S.Rajagopal appearing for the petitioners. He has inter alia contended that BDA has to acquire the land and pay compensation as per the prevailing market value in terms of the provisions of the New Act. Though an attempt has been made by the Court to find out as to what is the exact market value of the acquired lands, it is very difficult to ascertain the same in the absence of proper evidence. Therefore, this Court is left with no option but to pronounce the verdict and issue directions which are just, legal and equitable keeping in mind, the aforesaid facts and circumstances of the case.
13. This Court is aware of the enormous injury, loss and hardship caused to the petitioners due to the highhanded act of the statutory body like BDA. If any private body or WP 43320-321/2016 12 individual had endeavoured to do the same, petitioners would have certainly initiated criminal proceedings for criminal trespass and other offences apart from approaching the Civil Court seeking restoration of their possession and for their restitution with full redressal and compensation. They have approached this Court because the offending body and the culprit is a creature of the statute controlled by the Government. That indeed makes the situation worse, because one can hardly expect such flagrant violation of rule of law by an instrumentality of the State.
14. The Apex Court in the case of TUKARAM KANA JOSHI & OTHERS VS M.I.D.C. & OTHERS - (2013) 1 SCC 353, had an occasion to consider similar action of the authorities. The observations made in paragraphs 8, 9 & 10 are usefully extracted as hereunder:
"8. The appellants were deprived of their immovable property in 1964, when Article 31 of the Constitution was still intact and the right to property was a part of fundamental rights under Article 19 of the Constitution. It is WP 43320-321/2016 13 pertinent to note that even after the right to property ceased to be a fundamental right, taking possession of or acquiring the property of a citizen most certainly tantamounts to deprivation and such deprivation can take place only in accordance with the "law", as the said word has specifically been used in Article 300-A of the Constitution. Such deprivation can be only by resorting to a procedure prescribed by a statute. The same cannot be done by way of executive fiat or order or administration caprice. In Jilubhai Nanbhai Khachar v. State of Gujaraj - AIR 1995 SC 142, it has been held as follows:
"48. In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There [is] no deprivation without [due] sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation."
9. The right to property is now considered to be not only a constitutional or a statutory right but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right. Human rights are considered to be in realm of individual rights, WP 43320-321/2016 14 such as the right to health, the right to livelihood, the right to shelter and employment, etc. Now however, human rights are gaining an even greater multifaceted dimension. The right to property is considered very much to be a part of such new dimension. (Vide Lachhman Dass v. Jagat Ram - (2007) 10 SCC 448, Amarjit Singh v. State of Punjab - (2010) 10 SCC 43, State of M.P. v. Narmada Bachao Andolan - (2011) 7 SCC 639, State of Haryana v. Mukesh Kumar and Delhi Airtech Services (P) Ltd. v. State of U.P. - (2011) 9 SCC 354)
10. In the case at hand, there has been no acquisition. The question that emerges for consideration is whether, in a democratic body polity, which is supposedly governed by the rule of law, the State should be allowed to deprive a citizen of his property, without adhering to the law. The matter would have been different had the State pleaded that it has right, title and interest over the said land. It however, concedes to the right, title and interest of the appellants over such land and pleads the doctrine of delay and laches as grounds for the dismissal of the petition/appeal."
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15. In paragraph 17, the Apex Court observes that depriving the appellants therein of the immovable properties was a clear violation of Article 21 of the Constitution and in a welfare State, statutory authorities were bound not only to pay adequate compensation, but also to rehabilitate such persons and hence, it was not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights under the garb of development. The Apex Court proceeds to further observe in paragraph 19 that the appellants before it had been seriously discriminated against qua other persons, whose lands were also acquired and some of them had been given benefits of acquisition in the year 1966 itself. Such kind of discrimination would not only breed corruption, but also disrespect for governance because of frustration that it left behind. The contention urged by the respondent-statutory body setting up delay and laches as a defence has been turned down because the action complained remained as a slur on the system of governance and justice as well which was anathema to the WP 43320-321/2016 16 doctrine of equality, which is the soul of the constitution. It is useful to extract certain observations found in the latter part of paragraph 19 and in paragraph 29, which reads as under:
"19. .........Even under valid acquisition proceedings, there is a legal obligation on the part of the authorities to complete such acquisition proceedings at the earliest, and to make payment of requisite compensation. .........
20. While dealing with the similar issue, this Court in K.Krishna Reddy v. Collector (LA)
- AIR 1988 SC 2123, held as under:
"12. ... After all money is what money buys. What the claimants could have bought with the compensation in 1977 cannot do in 1988. Perhaps, not even one-half of it. It is a common experience that the purchasing power of rupee is dwindling. With rising inflation, the delayed payment may lose all charms and utility of the compensation. In some cases, the delay may be detrimental to the interests of claimants. The Indian agriculturists generally have no avocation. They totally depend upon land. If uprooted, they will find themselves nowhere. They are left high and dry. They have no savings to draw. They have nothing to fall back upon.
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They know no other work. They may
even face starvation unless
rehabilitated. In all such cases, it is of utmost importance that the award should be made without delay. The enhanced compensation must be determined without loss of time.""
16. In paragraph 22, the Apex Court has concluded as under:
"22. Be that as it may, ultimately, good sense prevailed, and the learned Senior Counsel appearing for the State came forward with a welcome suggestion stating that in order to redress the grievances of the appellants, the respondent authorities would notify the land in dispute under Section 4 of the Act within a period of 4 weeks from today. Section 6 declaration will be issued within a period of one week thereafter. As the appellants have full notice and information with respect to the proceedings, publication in the newspapers either of the notification or of the declaration under the Act are dispensed with. Notice under Section 9 of the Act will be served within a period of 4 weeks after the publication of Section 6 declaration and award will be made within a period of three months thereafter. The deemed acquisition WP 43320-321/2016 18 proceedings would thus be concluded most expeditiously. Needless to say, the market value of the land in dispute will be assessed as it prevails on the date on which the Section 4 notification is published in the Official Gazette. Payment of compensation/award amount will be made to the claimants/persons interested immediately thereafter, along with all statutory benefits. The appellants shall be entitled to pursue the statutory remedies available to them for further enhancement of compensation, if so desired."
17. In the light of the above, as the BDA has allotted two sites bearing Nos.203/A & 204/A situated at Mathadahalli Further Extension towards 50% of sital area, BDA is directed to execute the sale deeds in respect of these sites within a period of 30 days from the date of receipt of a copy of this order. As regards the remaining 50%, the BDA shall either allot alternate land situated in the same locality or in the vicinity having equal value as that of the acquired land or pay compensation notifying the remaining extent of land for acquisition and by passing an award as WP 43320-321/2016 19 per the provisions of the New Act. The entire exercise in this regard shall be completed within a period of three months from the date of receipt of a copy of this order. Petitioners would be entitled to seek enhancement of compensation as per law. Writ Petitions are accordingly allowed.
18. The requirement to pay damages and to compensate and restitute the petitioner is not ordered in this case keeping in mind the direction issued to the BDA to execute sale deeds in respect of two developed sites in lieu of 50% of acquired land. BDA shall pay costs of this proceedings in a sum of Rs.25,000/- to the petitioners within two weeks.
Sd/-
JUDGE KK