Karnataka High Court
Mr G R Jagadish vs The Special Land Acquisition Officer on 28 October, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.55559 OF 2018 (LA-BDA)
BETWEEN:
1. MR. G R JAGADISH
S/O LATE G N R REDDY
AGED ABOUT 37 YEARS
OCC: AGRICULTURE.
2. MR. G N MUNIREDDY
S/O LATE NANJUNDAPPA
AGED ABOUT 56 YEARS
OCC:AGRICULTURE
3. MR. G N SUNDAR RAMA REDDY
S/O LATE NANJUNDAPPA
AGED ABOUT 48 YEARS
OCC:AGRICULTURE
4. MR. G N SRINIVASA REDDY
S/O LATE NANJUNDAPPA
AGED ABOUT 48 YEARS
OCC: AGRICULTURE
ALL ARE RESIDING AT NO.11,
GARIBHAVIPALYA, HOSUR MAIN ROAD
MADIVALA POST
BENGALURU-560 068.
...PETITIONERS
(BY SRI S.M. CHANDRASHEKAR, SENIOR ADVOCATE
FOR SRI S B MATHAPATHI, ADVOCATE)
2
AND:
1. THE SPECIAL LAND ACQUISITION OFFICER
VISHVESHARAYA CENTRE
SODIUM BLOCK, II FLOOR
DR. AMBEDKAR VEEDHI
BENGALURU-560 001.
2. THE PRINCIPAL SECRETARY
REVENUE DEPARTMENT
VIDHANA SOUDHA
DR. AMBEDKAR VEEDHI
BENGALURU-560 001.
3. THE SECRETARY
REVENUE DEPARTMENT
LAND ACQUISITION AND REHABILITATION
M S BUILDING
BENGALURU - 560001.
4. THE SECRETARY
THE AIRCRAFT EMPLOYEES HOUSE BUILDING
CO-OPERATIVE SOCIETY LTD
NO.39, GANDHI BAZAR
BENGALURU-560 004.
5. THE DIRECTOR
TOWN AND COUNTRY PLANNING AUTHORITY
KUMARA PARK WEST
BENGALURU -560 020.
6. SRI V VENKATESH
S/O PULUMANDADI
AGED ABOUT 50 YEARS
NO.50, SREE BHAIRAVA
11TH C CROSS, 2ND MAIN
3RD PHASE, J P NAGAR
BENGALURU -560 078.
3
7. SMT. UMA MAHESHWARI
W/O T SENTHIL KUMAR
AGED ABOUT 50 YEARS
R/AT NO.366, 23RD MAIN
BTM LAYOUT, II STAGE
ELECTRONIC CITY POST
BENGALURU -560 100.
8. SRI ARUN SAGAR A H
S/O HUCCHAPA
AGED ABOUT 41 YEARS
R/AT NO.29, AMRUDDI
FLAT NO.401, 9TH MIAN
14TH CROSS, H S R LAYOUT
6TH SECTOR
BENGALURU -560 102.
9. SRI MAHADEVAPPA
S/O LATE VENKATASWAMAPPA
AGED ABOUT 55 YEARS
R/AT NO.43/1, 999, SLV NILAYA
M G PALYA MAIN ROAD
OPP. SALARAPURIA SERENITY
BOMMANAHALLI
BENGALURU-560 068.
10. SRI MALATESH
S/O G N KULKARNI
AGED ABOUT 44 YEARS
R/AT NO.2640, I FLOOR
36TH CROSS, 28TH MAIN
JAYANAGAR, T BLOCK
BENGALURU -560 069.
11. SRI SARVANA
S/O LATE V RANGASWAMY
AGED ABOUT 49 YEARS
R/AT NO.130, ANNA NILAYAM
PARK ROAD, II CROSS
4
MICHEL PALYA, INDIRANAGAR,
BENGALI - 560 038.
12. SUBRAMANI
SINCE DECEASED REPRESENTED BY HIS LRS.
12 A. SMT. VIJAYA
W/O LATE SUBRAMANI
AGED ABOUT 50 YEARS
12 B. SRI PREM KUMAR S
S/O LATE SUBRAMANI
AGED ABOUT 30 YEARS
12 C. SRI NAVEEN KUMAR S
S/O LATE SUBRAMANI
AGED ABOUT 28 YEARS
ALL ARE R/AT NO.106, C - BLOCK
PURVI LOTUS APARTMENT
SOMASUNDARA PALYA MAIN ROAD
HARALUKUNTE VILLAGE
BOMMANAHALLI
BENGALURU-560 068.
13. SRI CHANDRA SHEKHAR
S/O LAKSHMIPATHI
AGED ABOUT 42 YEARS
R/AT NO.58/B, I CROSS
5TH A BLOCK, KORAMANGALA
BENGALURU-560 095.
14. SMT. S UMA
W/O SRI M SUKUMARAN
AGED ABOUT 73 YEARS
R/AT NO.154, 17TH MAIN
20TH CROSS, H S R LAYOUT
SECTOR-3, BENGALURU-560 102.
5
15. SRI JAGADISH
S/O RAJU
AGED ABOUT 39 YEARS
R/AT NO.1507, GROUND FLOOR
4TH MAIN, 23RD CROSS
7TH SECTOR, H S R LAYOUT
BENGALURU -560 102.
16. SRI MURUGAN
S/O THYAGARAJAN
AGED ABOUT 47 YEARS
R/AT NO.5, T T LANE
KALASHIPALYAM
BENGALURU-560 002.
17. SRI SRINIVAS REDDY
S/O NAGI REDDY
AGED ABOUT 48 YEARS
R/AT NO.4, 10TH MAIN
I CROSS, BOMMANAHALLI
BENGALURU-560 068.
18. SRI RAJESH P
S/O LATE PANCHARI
AGED ABOUT 31 YEARS
NO.7, 2ND CROSS, JAYAPPA LAYOUT
AECS LAYOUT, 'A' BLOCK, KUDLU
BENGALURU-560 068.
19. SRI ANIL KUMAR GUPTA
S/O JAWAHAR SAH
AGED ABOUT 42 YEARS
R/AT NO.6, G S EXOTICA APARTMENT
3RD MAIN, GOTTIGERE
BENGALURU-560 083.
20. SMT. GEETHA
W/O G SATHISH
6
AGED ABOUT 31 YEARS
R/AT BELT ROAD
CHIKMAGALURU TOWN
CHIKMAGALURU DISTRICT-577 101.
21. SRI R NARENDRA BABU
S/O LATE RAMAIAH
AGED ABOUT 35 YEARS
R/AT NO.20, 2ND CROSS, P R LAYOUT
BENNERUGHATTA ROAD
BENGALURU -560 030.
22. SRI K SATYANARAYANA
S/O LATE KRISHNAPPA
AGED ABOUT 47 YEARS
R/AT NO.16,20TH CROSS
PUKRAJ LAYOUT
BENNERUGHATTA ROAD
BENGALURU -560 030.
23. SRI B G MOHAN KRISHNA
S/O LATE B GOPAL RAO
AGED ABOUT 61 YEARS
NO.24, SARASWATHI NAGAR
VIJAYANAGAR
BENGALURU -560 040.
24. SRI H S CHANDRAPPA
S/O H SHANTHAMALLAPPA
AGED ABOUT 56 YEARS
NO.36, AYYAPPA NAGAR
2ND BLOCK, 3RD MAIN ROAD
K R PURAM
BENGALURU - 560 036.
25. SMT. M S AMRUTHAVALLI
W/O K N NAGENDRA
AGED ABOUT 49 YEARS
R/O NO.507, STEE SANNIDHI
7
2ND CROSS, 5TH MAIN
2ND BLOCK, B S K I STAGE
BENGALURU-560 050.
26. SRI PARAMESHWARAPPA SHESHAGIRI
S/O CHIKKAPPA SHESHAGIRI
AGED ABOUT 56 YEARS
R/O NO.151, 23RD CROSS
SUNCITY ROAD, BNADEMUTT LAYOUT
KENGERI SATELLITE TOWN
BENGALURU -560 060.
27. SRI SHIVAPPA
S/O LATE REVANASIDDAPPA
AGED ABOUT 59 YEARS
R/O NO.8, 5TH MAIN, 2ND CROSS
VBS NILAYA
NEW THIPPASANDRA POST
BENGALURU -560 075.
28. SRI SHANKARAPPA
S/O LATE BHASAPPA BEVOOR
AGED ABOUT 55 YEARS
R/O NO.26, SHIVAKRUPA
"BEVOOR MANE"
I D MAIN, 12TH CROSS
KRISHNAPPA GARDEN
KENGERI UPANAGAR
BENGALURU -560 060.
29. SRI K V KRISHNAMURTHY
S/O LATE K R VENKATAPA
AGED ABOUT 59 YEARS
R/O NO.90, 3RD CROSS
BALAJINAGAR, S B PURA MAIN ROAD
UTTARAHALLI
BENGALURU -560 061.
8
30. SRI S R CHIDANANDA
S/O LATE S V RUDRASWAMY
AGED ABOUT 56 YEARS
R/O NO.229, 12TH MAIN
22ND CROSS, H S R LAYOUT
7TH SECTOR
BENGALURU -560 102.
31. SRI B D SRIDHARA RAO
S/O LATE B DODDAIAH
AGED ABOUT 57 YEARS
R/O NO.52/34/5, 30TH CROSS
7TH BLOCK, OUT HOUSE, I FLOOR
JAYANAGAR
BENGALURU -560 070.
32. SRI DEVAPPA
S/O LATE RAMAPPA
AGED ABOUT 52 YEARS
R/O NO.21,
SRI LAKSHMI VENKATESHWARA NILAYA
I CROSS, BASAVANNA NAGARA
MARUTHI LAYOUT
NEAR GOPALAN ENG. COLLEGE
BASAVANNA NAGAR HOOD
MAHADEVAPURA POST
BENGALURU -560 048.
33. SRI BASAVARAJU P V
S/O LATE VENKATAGIRIYAPPA
AGED ABOUT 63 YEARS
R/O NO.1202, SAKAMMA LAYOUT
OPP: BWSSB
DODDATHOGUR, ELECTRONIC CITY (POST)
BENGALURU -560 100.
34. SRI R GOPINATH
S/O R RANGANATHA MUDALIAR
AGED ABOUT 57 YEARS
9
R/O NO.62, A/2, I MAIN
2ND CROSS, PRAKASHNAGAR
BENGALURU -560 021.
35. SRI KRISHNA REDDY
S/O LATE MUNISWAMY REDDY
AGED ABOUT 62 YEARS
R/O NO.969/G, 3RD CROSS
A BLOCK, AECS LAYOUT
HOUSUR MAIN ROAD
KUDLU
BENGALURU -560 068.
36. SRI C VINAYAGAM
S/O CHINNASWAMY
AGED ABOUT 45 YEARS
R/O NO.3, 5TH CROSS
K P AGRAHARA
BENGALURU -560 023.
37. SRI N PRAKASH RAO
S/O K NARAYANA RAO
AGED ABOUT 48 YEARS
R/O NO.41, 4TH TEMPLE ROAD
15TH CROSS, MALLESWARAM
BENGALURU-560 003.
38. SRI P G BALAKRISHNAN NAIR
S/O T K GODAVARAMA
AGED ABOUT 73 YEARS
R/O NO. 256, 'A' BLOCK
AECS LAYOUT, KUNDALAHALLI
BENGALURU -560 037.
39. SRI GAYATHRI
W/O B R NARASIMHAIAH
AGED ABOUT 45 YEARS
R/O NO.5, I A CROSS
VIDYANAGAR, OPP,. SKF BEARINGS LTD
10
BOMMASANDRA POST
ANEKAL TALUK
BENGALURU -560 099.
40. C N RAMA KRISHNAIAH
S/O NANJAIAH
R/AT NO.194, 6TH CROSS
MUTTURAYASWAMY LAYOUT
VISWANEEDAM POST
SUNKADAKATTE
BENGALURU -560 091.
41. K VENKATESH
S/O R KRISHNAPPA
R/O NO.278/1
BESIDING FOUNDRY
ANNASANDRA PALYA
H A L POST
BENGALURU -560 017.
42. MR. PAVAN KUMAR
S/O RAMESH CHANDER
AGED ABOUT 32 YEARS
R/AT HOUSE NO.405
DS MAX SUNRISE APARTMENT
KITHGNOOR MAIN ROAD
NEAR GARDEN CITY COLLEGE
K R PURAM POST -560 036.
...RESPONDENTS
(BY SRI K B NITYANANDA, AGA FOR R1 TO 3;
SRI SHASHIKIRAN SHETTY, SENIOR COUNSEL FOR
SRI KIRAN J, ADVOCATE FOR R4;
SRI M V CHARATI, ADVOCATE FOR R5;
SRI PRAKASH M H, ADVOCATE FOR R6-20 AND 12 A TO C;
SRI SHASHIKIRAN SHETTY, SENIOR COUNSEL FOR
SMT. LATHA S SHETTY, ADVOCATE FOR R21 TO 39;
SRI SHIVAPRASAD SHANTANAGOUDAR, ADVOCATE FOR
R40 & R41;
11
SRI PRAVEEN N, ADVOCATE FOR GANGATKAR AND CO., FOR
R42)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
MODIFIED RESIDENTIAL LAYOUT PLAN DATED 15TH MARCH,
2011 APPROVED BY THE RESPONDENT NO.5 BENGALURU
DEVELOPMENT AUTHORITY'S COMMITTEE IN TERMS OF THE
RESOLUTION NO.124 OF 2018 DATED 23.04.2008 INSOFAR AS
LAND MEASURING 5 ACRES 14 GUNTAS IN SURVEY.NO.44/1 OF
KUDLU VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK,
BENGALURU URBAN DISTRICT VIDE ANNEXURE-A.
IN THIS WRIT PETITION ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR "PRONOUNCEMENT OF
ORDERS", THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this petition, the petitioners have called in question the modified residential layout plan dated 15th March, 2011 approved by the respondent No.5-Bangalore Development Authority (for short hereinafter referred to as "the BDA") in terms of resolution No.124 of 2018 dated 24th April, 2018 insofar as the land measuring to an extent 5.14 acres in survey No.44/1 of Kudlu village, Anekal Taluk, Bengaluru Urban District.
2. The factual matrix of the case are that the petitioners claim to be the owners in possession of the land bearing survey No.44/1 measuring 14.31 acres situate at Kudlu village, Anekal 12 Taluk. It is further averred in the petition that, Nanjundappa (father of petitioners 2 to 4 and grandfather of petitioner No.1 herein), purchased the schedule property for valuable consideration as per the sale deed dated 24th August, 1943 (Annexure-B). Petitioner No.1 is the nephew of petitioners 2 to 4 and after the death of said Nanjundappa, petitioners herein are in possession of the land in question. It is further averred that the respondent-Government has issued Preliminary Notification dated 05th September, 1988 (Annexure-C) under Section 4(1) of the Land Acquisition Act, 1894 (for short hereinafter referred to as the "LA Act") and sought to acquire the large extent of land, including the land to an extent of 14.31 acres belonging to the petitioners herein, for the benefit of the members of respondent No.4-Society. Thereafter, respondent- Government has issued Final Notification dated 28th September, 1989 (Annexure-D) under Section 6(1) of the LA Act notifying acquisition to an extent of 9.17 acres out of 14.31 acres, as notified in the Preliminary Notification. Award came to be passed on 04th May, 1990 (Annexure-E) and the father of the petitioners 2 to 4 and grand father of petitioner No.1 had given 13 consent for passing award and the respondent-authorities have taken possession of land measuring 9.17 acres situate at survey No.44/1 of Kudlu village, Anekal Taluk. JMC sketch prepared by ADLR and SLAO including the survey settlement and land records shows that the respondent-authorities have acquired land to an extent of 9.17 acres. It is further averred in the petition that, since 9.17 acres was notified and acquired out of 14.31 acres and as such, the petitioners are in possession of remaining land to an extent of 5.14 acres of total extent of land. Petitioners have produced relevant electricity bills and revenue records including the photographs to substantiate their possession in the subject land. It is the grievance of the petitioners that the respondent No.5 has issued sanction plan in respect of the housing scheme of respondent No.4-Society including the land of the petitioners to an extent of 5.14 acres and as such, petitioners have got surveyed the land through a private Surveyor and thereafter, came to know that the impugned sanction plan by respondent No.5 encroaches the land belonging to the petitioners to an extent of 5.14 acres. Hence, petitioners are before Court in this writ petition.
14
3. The respondent-State has filed statement of objection, admitting the issuance of Preliminary and Final Notifications as contended by the petitioners and specifically stated that the respondent-authorities have acquired only 9.17 acres out of 14.31 acres of land in survey No.44/1 and the remaining land of 5.14 acres was left out from acquisition proceedings. The respondent-State has also filed detailed affidavit dated 10th February, 2021 of Sri Ananda Kumara, Assistant Director of Land Records, Yelahanka, Bengaluru, narrating the survey conducted by the Officers, categorically admitting the difference of the extent mentioned in the survey map produced by the respondent-Society and the Special Land Acquisition Officer. The Regional Joint Director of Land Records-Sri E. Prakash, has filed an affidavit dated 22nd March, 2021 stating about the unacquired portion of the land. The third affidavit dated 04th June, 2021 from the respondent-State is by Sri Ponnuraj, Commissioner, Survey Settlement and Land Records, State of Karnataka, stating about the dereliction of duty by the Special Land Acquisition Officer, Assistant Director of Land Records and the Surveyor for having not complied with the direction of this 15 Court. The respondent-State has also filed Memo dated 22nd April, 2021 along with certain documents, stating about the meeting held by the Regional Joint Director, Bengaluru along with Special Land Acquisition Officer;' Land Acquisition Officer of Bangalore Development Authority; Assistant Director Land Records, Anekal and the Surveyor of Bangalore Development Authority. The respondent-State admits that out of 14.31 acres of land in survey No.44/1, of Kudlu village, Anekal Taluk, only 9.17 acres had been notified in the Final Notification and thereby the said extent was acquired and award was passed only to an extent of 9.17 acres leaving out 5.14 acres of land. The report reveals that the respondent-Society has formed layout in survey No.44/1 to an extent of 13.07 acres, excluding the portion of the property belonging to Nanjappa, to an extent of 1.24 acres, which is the subject matter in Original Suit No.363 of 1997 and therefore, concluded that Society is in possession of 3.30 acres of land, in excess of the land that is acquired.
4. The respondent No.4-Society has filed detailed statement of objection contending that preliminary Notification 16 dated 05th September, 1988 was issued for the purpose of acquisition of land in favour of respondent No.4-Society and thereafter, Final notification was issued on 28th September, 1989 which includes the land bearing survey No.44/1 measuring 9.17 acres situate at Kudlu village, Anekal Taluk and thereafter, Special Land Acquisition Officer prepared the JMC sketch and possession was handed over to the respondent-Society and in furtherance of the same, award came to be passed on 04th September, 1990. It is the specific defence of the respondent No.4 that father of the petitioners 2 to 4-Sri Nanjundappa has filed writ petitions No.1200-1207 of 1990 before this Court and this Court, by order dated 22nd January, 2002, dismissed the petitions and same was confirmed in Writ Appeal No.1172-78 of 2002 on 22nd July, 2003 and thereafter Review Petition No.827- 832 of 2003 was filed, which came to be dismissed by order dated 30th January, 2004. Aggrieved by the same, Special Leave Petitions No.19733-739 of 2003 were filed before the Hon'ble Supreme Court, which came to be dismissed on 07th November, 2003. It is also stated that the State Government had taken possession of the land by issuing Notification under Section 17 16(2) of LA Act on 06th December, 1994; 01st January, 2002; and 22nd August, 2003, in respect of the property in question and Special Land Acquisition Officer has handed over the possession of the subject land to the respondent No.4-Society to an extent of 9.17 acres. It is further stated that the respondent No.4-Society has formed sites over the land in question and allotted sites to its Members pursuant to the execution of the registered sale deeds and therefore, he contended that the petitioners have no title over the schedule property. It is further contended that the father of the petitioners 2 to 4 herein has filed another writ petition No.35198 of 2004 and this Court, by order dated 31st January, 2007 dismissed the petition and therefore, the petitioners cannot be permitted to agitate the same grounds in the present writ petition. It is further stated that the modified plan was approved by the respondent-BDA on 15th March, 2011 and therefore, it is further urged that as the petitioners are not the owners of the schedule land in question and as such, denied the title of the petitioners and based on the said averments in the statement of objection, it is contended 18 that the writ petition deserves to be dismissed on the ground of delay and laches also.
5. The respondent No.5-BDA has filed statement of objection contending that the respondent-BDA has approved the modified layout plan of AECS-HBCS Layout to an extent of 9.17 acres only in survey No.44/1 of Kudlu village, Anekal Taluk. It is further contended that, insofar as the survey sketch prepared by the ADLR, Anekal Taluk, the same has to be answered by the respondent No.1-State and accordingly, sought for dismissal of the writ petition.
6. The allottees of the sites (respondents 6 to 20) and the impleading applicants/allottees of sites by the respondent No.4- Society have filed statement of objection contending that, pursuant to the acquisition proceedings, the respondent No.4- Society has allotted sites in their favour by way of registered sale deeds and they are in possession of the respective sites in question and accordingly, sought for dismissal of the writ petition. These respondents have questioned the title of the petitioners in respect of the schedule property and further 19 contended that the father of the petitioners 2 to 4 has approached this Court, questioning the legality of the acquisition proceedings, which came to be dismissed by this Court and thereafter confirmed by the Hon'ble Apex Court, accordingly sought for dismissal of the writ petition.
7. In the backdrop of these pleadings on record, I have heard Sri S.M. Chandrashekar, learned Senior Counsel appearing on behalf of Sri S.B. Mathapathi for the petitioners; Sri Shashikiran Shetty, learned Senior Counsel appearing on behalf of Sri Kiran J, for the respondent No.4-Society; Sri M.V. Charati, learned counsel appearing for respondent No.5-BDA; Sri M.H. Prakash for respondents No.6 to 20; Sri Shivaprasad Shantanagoudar, learned counsel appearing for respondents 40 and 41; Sri K.R. Nityanand, learned Additional Government Advocate for respondent-State.
8. Sri S.M. Chandrashekar, learned Senior Counsel appearing for the petitioners argued that the impugned modified layout plan dated 15th March, 2011 includes the schedule property, i.e. 5.14 acres, in survey No.44/1 of Kudlu village, 20 Anekal Taluk is illegal and without jurisdiction on the ground that the schedule property, i.e. 5.14 acres of land, has not been notified in the Final Notification by the respondent-Government and same has not been handed over to the respondent No.4- Society by the respondent-authorities and therefore, the impugned Modified Layout Plan issued by the respondent No.5- BDA requires to be set aside. Learned Senior Counsel further argued that in terms of the direction issued by this Court, the Assistant Director of Land Records has filed affidavit, which would conclusively establish that the respondent No.4-Socieity has encroached the portion of the property belonging to the petitioners, which are unacquired land and therefore, sought for allowing the writ petition. He further contended that Nanjundappa (father of petitioners 2 to 4) and Nanjappa, who were the children of late Basappa, have sold portion of the land measuring 5.17 acres in survey No.44/1 in favour of one Obala Reddy out of total extent of 14.31 acres on 29th September, 1958 and thereafter, the said Nanjundappa and Nanjappa have re-purchased the same by way of registered sale deed dated 03rd July, 1961 from the said Obala Reddy. Learned Senior Counsel 21 further contended that on 19th May, 1975, partition deed was executed between the brothers, i.e. Nanjundappa and Nanjappa; and in the said partition, the eastern portion of the land bearing survey No.44/1C was allotted to the share of Nanjundappa and the western portion of the land bearing survey No.44/1C was allotted in favour of Nanjappa (uncle of the petitioners). In the meanwhile, the schedule property was mortgaged in favour of one Sri Nagaraj by deed dated 14th May, 1975 and same was redeemed on 01st June, 1987 and therefore, Nanjundappa derived the absolute right and title over the schedule property. Based on the above submissions, Sri S.M. Chandrashekar, learned Senior Counsel, argued that the contentions raised by the respondents that the petitioners have no title nor established the right over the schedule property, cannot be accepted. It is the categorical submission of the learned Senior Counsel for the petitioners that the respondent No.4-Society, with oblique motive, encroached the land belonging to the petitioners which are not included in the Final Notification, which is self- explanatory and same has been proved through the report of the Assistant Director of Land Records, before this Court. 22 Emphasising on these aspects, learned Senior Counsel argued that the respondents have admitted that they have paid compensation insofar as 9.17 acres, which would clearly establish the fact the respondent No.4-Society has no right or interest over the land beyond 9.17 acres and therefore, the same would substantiate the fact that the petitioners are in possession of the remaining of 5.14 acres out of 14.31 acres of survey No.44/1 of Kudlu village, Anekal Taluk. Referring to the judgments relied upon by the learned Senior Counsel appearing for the respondent No.4-Society that the father of the petitioners has challenged the acquisition proceedings before this Court in Writ Petition No.1207 of 1990 and writ petition No.35198 of 2014, Sri S.M. Chandrashekar, argued that in the above writ petitions acquisition proceedings has been challenged, however, in the present writ petition, the petitioners have sought for a direction to the respondent No.5-BDA to modify its Layout plan dated 15th March, 2011, leaving out the land to an extent of 5.14 acres in survey No.44/1 of Kudlu village, which is the unacquired land and not the subject matter in the above writ petitions and therefore, he contended that the objections raised by the other 23 side with regard to the same, has no basis. Learned Senior Counsel, further contended that the respondent-authorities have not taken possession of the land in question and therefore, sought for interference of this Court by stating that the inclusion of schedule property by the respondent No.5-BDA while modifying the Layout plan, amounts to violation of Article 14 of Constitution of India and accordingly, sought for allowing the writ petition.
8.1. Sri S.M. Chandrashekar, learned Senior Counsel further argued that in an identical case before this Court in Writ Appeal No.1794 of 2007 connected with Wri Appeal 1651 of 2007, this Court, by its order dated 22nd September, 2006, deprecated the action and involvement of the respondent No.4- Society, illegally securing the Layout plan from the respondent No.5-BDA with regard to unacquired lands, and as such, quashed the Layout Plan approved by the respondent-BDA in respect of the respondent-Society relating to the land bearing survey No.81/2-A of Singasandra Village, Bangalore South Taluk, Bengaluru measuring to an extent of 2.20 acres and the said 24 judgment is confirmed by the Hon'ble Apex Court and therefore, learned Senior Counsel argued that petitioners have made out a case for interference in this petition.
9. On the other hand, Sri K. Shashikiran Shetty, learned Senior Counsel appearing for respondent No.4-Society, argued that the petitioners are not the owner of the property in question and Nanjappa (uncle of the petitioners 2 to 4) sold the land in favour of third parties and sale deed has been executed on 16th July, 2001 and therefore, disputed the title of the petitioners. He further contended that the Preliminary Notification dated 05th September, 1988 and Final Notification dated 28th September, 1999 are the subject matter of the writ petitions, dismissed by this Court referred to above and therefore, he argued that it is a clear case of abuse of process of Court. Referring to these aspects, Sri Shashikiran Shetty, learned Senior Counsel, contended that as the consent award came to be passed on 04th May, 1990 in respect of land measuring 9.17 acres in survey No.44/1, the respondent No.4-Society has allotted the sites to its members and registered sale deeds have been executed by the 25 respondent No.4-Society and therefore, disputed the arguments advanced by the learned Senior Counsel for the petitioner that the petitioners are in possession of the schedule property. Learned Senior Counsel also argued that as the respondent- authorities have issued Notification under Section 16(2) of LA Act and the Government had taken possession and handed over the land to respondent No.4-Society, writ petition itself is not maintainable. He also contended that the sanction of Modified Layout Plan is within the purview of acquisition Notifications referred to above and therefore, argued that the writ petition requires to be dismissed. Emphasising on these aspects, he argued that the writ petition is also liable to be dismissed as the disputed questions of fact are involved in the writ petition and petitioners have not placed any cogent document to establish their ownership in respect of the schedule property. Learned Senior Counsel further contended that the subject lands are acquired and the Special Land Acquisition Officer prepared the JMC Sketch and thereafter handed over the same to the respondent No.4-Society long back i.e. during 1994, 2002 and 2003 and therefore, the writ petition deserves to be dismissed 26 on the ground of delay and laches. Arguing on the report filed before this Court by Assistant Director of Land Records, the learned Senior Counsel contended that Assistant Director of Land Records himself could not identify the property in question and therefore, the writ petition deserves to be dismissed with cost.
10. Sri M.H. Prakash, learned counsel appearing for respondents 6 to 21, argued that the respondent No.4-Society has executed registered sale deed in favour of its Members and they are in possession of the schedule property and therefore, he submits that the writ petition deserves to be dismissed on the ground that unless those registered sale deeds are nullified by a competent court, this Court, under Article 226 of the Constitution of India, cannot issue writ of mandamus to the respondent-BDA to modify the Layout Plan. He further contended that the petitioners have not produced any materials to establish their right and title over the schedule property. Brother of father of petitioners 2 to 4-B. Nanjappa had received compensation with regard to the subject land and therefore, the petitioners have no right to challenge the modified Layout Plan. 27 He also invited the attention of the Court to the Writ Petitions and Writ Appeals, as well as the Special Leave Petitions dismissed by the Hon'ble Supreme Court relating to the challenging the acquisition proceedings and further contended that since the acquisition proceedings has reached finality, the petitioners cannot agitate the same grounds for the third time in the present writ petition and accordingly, sought for dismissal of the writ petition. The learned Counsel also contended that enormous delay has been caused in the present petition and therefore, submits that writ petition be dismissed on the ground of delay and laches.
11. Sri Shivaprasad Shantanagoudar, learned Counsel appearing for the respondents 40 and 41, reiterating the arguments of the learned counsel representing the respective allottees, contended that the petitioners have misrepresented the facts and have no documents to establish their right over the schedule property and as such, sought for dismissal of the writ petition.
28
12. Sri K.R. Nityananda, learned Additional Government Advocate appearing for the respondent-State submitted that the impugned Modified Layout Plan was pursuant to the sketch prepared by the respondent No.1-Special Land Acquisition Officer and therefore, contended that the writ petition does not survive for consideration. He also referred to the affidavit filed by the Assistant Director of Land Records, pursuant to the direction issued by this court on 04th February, 2021 and argued that the said report has been filed after conducting survey by the Surveyor and the sketch has been verified by the Supervisor and the Assistant Director of Land Records. Referring to paragraphs 11 and 12 of the affidavit dated 10th February, 2021 by the Assistant Director of Land Records, learned AGA argued that two pieces of land in the sketch are unacquired lands and the left-out portion is on the western side of the survey Number i.e. portion measuring 1.24 acres. He also invited the attention of the Court to the memo with documents dated 22nd April, 2021 and accordingly, submitted that the petition be disposed of. 29
13. Sri M.V. Charati, learned counsel appearing for respondent No.5-BDA argued that the acquisition was only in respect of the land bearing survey No.44/1 of Kudlu village to an extent of 9.17 acres and the subject matter of the schedule property in the present writ petition, i.e. 5.14 acres has been left out in the acquisition proceedings and in order to substantiate his arguments, he produced records before this Court.
14. Having heard the learned counsel appearing for the parties at length, I have carefully examined the writ papers including the pleadings filed by the parties. In the background of the arguments advanced by the learned counsel appearing for the parties referred to above, the following questions are to be answered in this writ petition:
(1) Whether the petitioners establish their title in respect of the land bearing survey No.44/1 to an extent of 5.14 acres of Kudlu village, Anekal Taluk, which has been described as the Schedule Property?30
(2) Whether the relief sought for in this petition is hit by the judgments of this Court in writ petitions No.1200-1207 of 1990 confirmed in Writ Appeal No.1172-78 of 2002 and thereafter, affirmed by Hon'ble Supreme Court in SLPs No.19733-739 of 2003?
(3) Whether the respondents have made out a case that the schedule property has been acquired for the benefit of respondent No.4-Society?
(4) Whether the petitioners have made out a case for quashing the modified layout plan dated 15th March, 2011 approved by the respondent No.5-
BDA?
(5) What Order?
15. In order to establish their right over the schedule property, petitioners have stated that originally the land bearing survey No.44/1 to an extent of 14.31 acres of Kudlu Village, Anekal Taluk has been purchased by Nanjundappa (father of 31 petitioners 2 to 4 and grandfather of petitioner No.1 herein) as per registered sale deed dated 24th August, 1943 in the office of the Sub-Registrar. On 17th December, 1973, partition was effected between the said Nanjundappa and his brother Nanjappa (Annexure-R18) and 'A' Schedule property in the said portion was allotted in favour of Nanjundappa and 'B' Schedule property was allotted in favour of Nanjappa. Item No.5 in the partition deed refers to survey No.44/1C, which reads as under:
"D£ÉÃPÀ¯ï vÁ®ÆèPÀÄ ¸ÀeÁð¥ÀÄgÀ ºÉÆç½ PÀÆqÀÄè UÁæªÀÄPÉÌ ¸ÉÃjzÀ ¸ÀªÉð £ÀA.44/1¹ £ÀA§gï ¥ÉÊQ ¥ÀƪÁðzsÀð d«ÄäUÉ ZÀPÀÄ̧A¢:
¥ÀƪÀðPÉÌ: : aPÀÌtÚ ªÀÄvÀÄÛ wªÀÄäAiÀÄå C§âAiÀÄå£ÀªÀgÀ d«ÄãÀÄ ¥À²ÑªÀÄPÉÌ : ¨Á¼À¥Àà£À ªÀÄUÀ ªÀÄĤAiÀÄ¥Àà£À d«ÄãÀÄ GvÀÛgÀPÉÌ : PÀÆqÀÄè ºÉƸÀªÀÄ£É ªÀÄĤªÉAPÀl¥Àà£À d«ÄãÀÄ zÀQëtPÉÌ : JqÀUÉÊ ¥ÉgÀĪÀÄAiÀÄå£À d«ÄãÀÄ F ªÀÄzÉå EgÀĪÀ 5JPÀgÉ.15 PÀÄAmÉ d«ÄãÀÄ JAzÀÄ F LzÀÄ LlªÀiï ¸ÀévÀÄÛUÀ¼À£ÀÄß MAzÀ£Éà ¨sÁUÀ¸ÀÜ£ÁzÀ £Á£ÀÄ ¸Áé¢üãÀPÉÌ vÉUÉzÀÄPÉÆAqÀgÀÄvÉÛãÉ."32
16. The said partition deed was registered as Document No.1860/1975-76 in the office of Sub-Registrar, Bengaluru South Taluk. In that view of the matter, I do not find any acceptable ground, as urged by the learned counsel appearing for the respondents, disputing the title of the petitioners herein. Suffice to say that the father of the petitioners 2 to 4- Nanjundappa, mortgaged the schedule property in favour of one Nagaraj and thereafter mortgage was redeemed and therefore, the said Nanjundappa derived absolute right, title and interest in respect of land in survey No.44/1C of Kudlu village, Anekal Taluk.
17. Nextly, the respondent-State has issued Notification dated 05th September, 1988 (Annexure-C) under Section 4(1) of the LA Act proposing to acquire 14.26 acres in survey No.44/1 of Kudlu village, for the purpose of benefit of respondent No.4- Society and thereafter, Final Notification dated 28th September, 1989 (Annexure-D) was issued under Section 6(1) of the LA Act restricting the extent of acquisition of land to 9.17 guntas as against 14.26 acres notified in the Preliminary Notification. It is 33 also not in dispute that the respondent-State issued Notification under Section 16(2) of the Act on 06th December, 1994, 01st September, 2002 and 22nd August, 2003 taking possession of the land to an extent of 9.17 acres in terms of the Final Notification dated 28th September, 1989 (Annexure-D). In the present writ petition, the relief sought for by the petitioners is to an extent unacquired land of 5.14 acres in survey No.44/1 and has nothing to do with the acquisition proceedings to an extent of 9.17 acres in terms of Final Notification dated 28th September, 1989 (Annexure-D) and therefore, though the acquisition proceedings has been questioned by the father of the petitioners 2 to 4 in the writ petitions referred to above, which ultimately dismissed and confirmed up to Hon'ble Apex Court, cannot be a ground to dismiss the present writ petition as the prayer in the present writ petition is altogether different, which relates to unacquired portion of the land by the respondent-State. It is made clear that the right or interest of the respondent No.4- Society is only with regard to the acquired land in an extent of 9.17 acres and the respondent No.4-Society has no authority under law to interfere with the remaining unacquired land of 34 5.14 acres in survey No.44/1 of Kudlu village. At this juncture, it is also relevant to reproduce the conclusion arrived by the Assistant Director of Land Records in the report as per the direction of this Court dated 15th April, 2021. The findings of the Assistant Director of Land Records would makes it clear that the respondent No.4-Society is in possession of 3.30 acres of land in excess of the land acquired. The relevant finding of the Assistant Director of Land Records reads as under:
"At present as on ground as per the approved BDA plan, the society has formed lay out in Survey.No.44/1 in an extent of 13 acres 07 guntas excluding 01 acre 24 guntas decreed in favour of Sri Nanjappa in OS.No.363/97.
As per the compensation awards the society has acquired 09 acres 17 guntas in Survey No.44/1. There by the society is in possession of 03 acres 30 guntas in excess of the land acquired.
From the above BDA approved layout it can be noted that the society is in possession of 12 acre 31 guntas in survey no. 44/1 while they have acquired only 09 acres 17 guntas. The portion of land marked in the approved layout plan indicating survey.no.44/1P and Survey.No.44/1D have not been acquired."35
(underlining by me)
18. Taking into consideration the report of Assistant Director of Land Records referred to above, I am of the view that the respondent No.4-Soiciety has encroached the portion of the land belonging to the petitioners in excess of 9.17 acres as per Final Notification dated 28th September, 1989 (Annexure-D) and therefore, I find force in the submission made by the learned Senior Counsel Sri S.M. Chandrashekar appearing for the petitioners that the respondent No.4-Society has illegally, without following the acquisition proceedings, encroached the portion of the land belonging to the petitioners. In view of the observations made above, the petitioners herein have substantiated that they are the owners in possession of land in an extent of 5.14 acres in survey No.44/1 of Kudlu village and the respondent No.4-Society has acquired excess land in survey No.44/1 of Kudlu village, Anekal Taluk. In view of my observation made above, with regard to the fact that the relief sought for present writ petition is totally different from the relief sought for in the writ petitions referred to above which were concluded by the Hon'ble Apex Court relating to validity of the 36 acquisition proceedings, I do not find any merit in the submission made by the learned counsel appearing for the respondents as the same is hit by res judicata. In view of the fact that the conclusion arrived at above that the respondent No.4-Society is in possession of 3.30 acres in excess of the land acquired, excluding the acquired land to an extent of 9.17 acres in survey No.44/1 of Kudlu village, I am of the view that the respondent No.4-Society has committed illegality by encroaching the land belonging to the petitioners. At this juncture, it is relevant to cite the observation made by the Division Bench of this Court in the case of DHANALAKSHMI (supra), whereby having elaborately discussed the action of the respondent- Society therein to interfere with the possession of the land owners in excess of the acquired land, quashed the Layout Plan approved by the BDA therein insofar as it relates to the land bearing survey No.81/2-A of Singasandra village, Bangalore South Taluk to an extent of 2.20 acres. The Division Bench, categorically deprecates the action of the respondent-Society therein, in the aforementioned judgment. Surprisingly, very same Society is the respondent No.4 in the present petition. 37 Accordingly, points No.1, 2 and 4 formulated above, favour the petitioners herein.
19. Insofar as point No.3 is concerned, Sri Shashikiran Shetty, learned Senior Counsel appearing for the respondent No.4-Society, contended that sites have been formed by the respondent-Society in portion of the land, which is alleged to have been claimed by the petitioners herein and registered sale deeds have been executed in favour of the Members of the Society. With regard to the same, it is made clear that the respondent No.4-Society is empowered to allot the site to an extent of 9.17 acres out of 14.31 acres in survey No.44/1 for acquisition for the benefit of its Members in terms of Final Notification dated 28th September, 1989 (Annexure-D) and has no authority under law to encroach the unacquired land in an extent of 5.14 acres in survey No.44/1 belonging to the petitioners and allot sites from the unacquired portion of 5.14 acres of land. Point No.3 is answered accordingly.
20. Though the learned Senior Counsel appearing for respondent No.4-Society contended that there is delay in filing 38 the writ petition and disputed questions of facts, since the claim made by the petitioners is with regard to unclaimed portion of the land by the respondent-authorities and therefore, the petitioners have a right over the schedule property, inasmuch as, encroaching the land belonging to petitioners by the respondent No.4-Society, amounts to violation of constitutional right of the petitioners and therefore, the contention raised by the respondents with regard to delay and disputed questions of facts, cannot be accepted. At this juncture, it is to be noted that the Hon'ble Supreme Court in the case of SUKH DUTT RATRA AND ANOTHER v. THE STATE OF HIMACHAL PRADESH AND OTHERS reported in (2022)7 SCC 508, while considering the case of the claimants whose lands have been acquired for the purpose of NARAG-FAGLA ROAD, following the judgment in the case of VIDYADEVI v. STATE OF HIMACHAL PRADESH reported in (2020)2 SCC 569, at paragraphs 13 to 25 of the judgment, held as follows:
"13. While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still 39 included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.
14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorization of law. The recognition of this dates back to the 1700s to the decision of the King's Bench in Entick v. Carrington and by this court in Wazir Chand v. The State of Himachal Pradesh. Further, in several judgments, this court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.
15. When it comes to the subject of private property, this court has upheld the high threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State. In Bishandas v. State of Punjab, this court rejected the contention that the petitioners in the case were trespassers and could be removed by an executive order, and instead concluded that the executive action taken by the State and its officers, was destructive of the basic principle of the rule of law. This court, in another case -40
State of Uttar Pradesh and Ors. v. Dharmander Prasad Singh and Ors., held:
"A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the lease- deed does not authorise extra- judicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedigree'".
16. Given the important protection extended to an individual vis-a-vis their private property (embodied earlier in Article 31, and now as a constitutional right in Article 300-A), and the high threshold the State must meet while acquiring land, the question remains - can the State, merely on the ground of delay and laches, evade its legal responsibility towards those from whom private property has been expropriated? In these facts and circumstances, we find this conclusion to be unacceptable, and warranting intervention on the grounds of equity and fairness.
17. When seen holistically, it is apparent that the State's actions, or lack thereof, have in fact compounded 41 the injustice meted out to the appellants and 1962(2) SCR 69; 1989(1) SCR 176 compelled them to approach this court, albeit belatedly. The initiation of acquisition proceedings initially in the 1990s occurred only at the behest of the High Court. Even after such judicial intervention, the State continued to only extend the benefit of the court's directions to those who specifically approached the courts. The State's lackadaisical conduct is discernible from this action of initiating acquisition proceedings selectively, only in respect to the lands of those writ petitioners who had approached the court in earlier proceedings, and not other land owners, pursuant to the orders dated 23.04.2007 (in CWP No. 1192/2004) and 20.12.2013 (in CWP No. 1356/2010) respectively. In this manner, at every stage, the State sought to shirk its responsibility of acquiring land required for public use in the manner prescribed by law.
18. There is a welter of precedents on delay and laches which conclude either way - as contended by both sides in the present dispute - however, the specific factual matrix compels this court to weigh in favour of the appellant-land owners. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a 'limitation' to doing justice. This court in a much earlier case - Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, held:
42
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material.
But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might 1969(1) SCR 808 affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
19. The facts of the present case reveal that the State has, in a clandestine and arbitrary manner, actively tried to limit disbursal of compensation as required by law, only to those for which it was specifically prodded by the courts, rather than to all those who are entitled. This arbitrary action, which is also violative of the appellants' prevailing Article 31 right (at the time of cause of action), undoubtedly warranted consideration, and intervention by the High Court, under its Article 226 jurisdiction. This court, in Manohar (supra) - a similar case where the name of the aggrieved had been deleted from revenue 43 records leading to his dispossession from the land without payment of compensation - held:
"Having heard the learned counsel for the appellants, we are satisfied that the case projected before the court by the appellants is utterly untenable and not worthy of emanating from any State which professes the least regard to being a welfare State. When we pointed out to the learned counsel that, at this stage at least, the State should be gracious enough to accept its mistake and promptly pay the compensation to the respondent, the State has taken an intractable attitude and persisted in opposing what appears to be a just and reasonable claim of the respondent.
Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows:
"300-A. Persons not to be deprived of property save by authority of law.--No person shall be deprived of his property save by authority of law." This is a case where we find utter lack of legal authority for deprivation of the respondent's property by the appellants who are State authorities. In our view, this case was an eminently fit one for exercising the writ jurisdiction of the High Court under Article 226 of the Constitution..."
20. Again, in Tukaram Kana Joshi (supra) while dealing with a similar fact situation, this court held as follows:
"There are authorities which state that delay and laches extinguish the right to put forth a claim.44
Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode."
21. Having considered the pleadings filed, this court finds that the contentions raised by the State, do not inspire confidence and deserve to be rejected. The State has merely averred to the appellants' alleged verbal consent or the lack of objection, but has not placed any material on record to substantiate this plea. Further, the State was unable to produce any evidence indicating that the land of the appellants had been taken over or acquired in the manner known to law, or that they had ever paid any compensation. It is pertinent to note that this was the State's position, and subsequent findings of the High Court in 2007 as well, in the other writ proceedings.
22. This court is also not moved by the State's contention that since the property is not adjoining to that 45 of the appellants, it disentitles them from claiming benefit on the ground of parity. Despite it not being adjoining (which is admitted in the rejoinder affidavit filed by the appellants), it is clear that the subject land was acquired for the same reason - construction of the Narag Fagla Road, in 1972-73, and much like the claimants before the reference court, these appellants too were illegally dispossessed without following due process of law, thus resulting in violation of Article 31 and warranting the High Court's intervention under Article 226 jurisdiction. In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment.
23. This court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances - rejected the contention of 'oral' consent to be baseless and outlined the responsibility of the State:
"12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi v. MIDC, (2013)1 SCC 353 : (2013)1 SCC (Civ) 491] wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory 46 mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
12.10. This Court in State of Haryana v. Mukesh Kumar (2011)10 SCC 404 : (2012)3 SCC (Civ) 769] held that the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm of individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension."
24. And with regards to the contention of delay and laches, this court went on to hold:
"2.12. The contention advanced by the State of delay and laches of the appellant in moving the Court is also liable to be rejected. Delay and laches cannot be raised in a case of a continuing cause of action, or if the circumstances shock the judicial conscience of the Court. Condonation of delay is a matter of judicial discretion, which must be exercised judiciously and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights, and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.
12.13. In a case where the demand for justice is so compelling, a constitutional court would exercise its jurisdiction with a view to promote justice, and not defeat it. [P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152 : 1975 SCC (L&S) 22]"
25. Concluding that the forcible dispossession of a person of their private property without following due 47 process of law, was violative of both their human right, and constitutional right under Article 300-A, this court allowed the appeal. We find that the approach taken by this court in Vidya Devi (supra) is squarely applicable to the nearly identical facts before us in the present case." The above principle would squarely apply to the facts of the case on hand and depriving the rights of the petitioners by encroaching 5.14 acres of land, in excess of acquisition notification, amounts to violation of Article 300-A of the Constitution of India. Following the dictum of the Hon'ble Supreme Court in the judgments aforestated, I pass the following:
ORDER (1) Writ petition is allowed;
(2) Modified residential layout plan dated 15th March, 2011 approved by the respondent No.5-
Bangalore Development Authority in terms of the resolution No.124 of 2018 dated 23rd April, 2008 insofar as land measuring 5.14 acres in 48 survey No.44/1 of Kudlu village, Anekal Taluk is quashed;
(3) Respondent No.4-Society is directed to put the petitioners in possession of land in excess of 9.17 acres acquired in terms of Final Notification dated 28th September, 1989.
No order as to costs.
Sd/-
JUDGE lnn