Karnataka High Court
Sri B V Sampath vs State Of Karnataka on 4 February, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 04TH DAY OF FEBRUARY 2014
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos. 12646-12647 OF 2010 (LA-BDA)
CONNECTED WITH
WRIT PETITION Nos.5679-5686 OF 2010 (LA-BDA)
IN W.P.Nos.12646-12647/2010
BETWEEN:
1. Sri. B.V. Sampath,
Aged about 60 years,
Son of Late Sri. Vallappa,
2. Sri. B.V. Papanna,
Aged about 52 years,
Son of Late Sri. Vallappa,
Both are residing at
Bilekehalli Village,
Bangalore South Taluk,
Bangalore District.
...PETITIONERS
(By Shri. Udaya Holla, Senior Advocate )
AND:
1. State of Karnataka,
2
By the Principal Secretary,
Department of Housing and Urban Development,
Vikasa Soudha,
Bangalore.
2. Bangalore Development Authority,
By its Commissioner,
Bangalore.
3. Additional Land Acquisition Officer,
Bangalore Development Authority,
Bangalore.
4. Deputy Commissioner,
Land Acquisition,
Bangalore Development Authority,
Bangalore.
...RESPONDENTS
(By Shri. D. Nagaraj, Additional Government Advocate for
Respondent No.1
Shri. C.R. Gopalaswamy, Advocate for Respondent Nos. 2 to 4 )
*****
These Writ Petitions filed under Articles 226 and 227 of the
Constitution of India, praying to quash the preliminary
notification bearing dated 06.08.1988 issued by the second
respondent (Annexure-J) and the final notification bearing dated
03.11.1990 issued by the 1st respondent (Annexure-K).
IN W.P.Nos. 5679-5686/2010
BETWEEN:
1. Sri. B.V. Sampath,
Aged about 60 years,
3
Son of Late Sri. Vallappa,
2. Smt. Yellamma,
Aged about 50 years,
Daughter of late Sri. Vallappa,
3. Smt. Sarojamma,
Aged about 45 years,
Daughter of Late Sri. Vallappa,
4. Sri. B.S. Nagaraju,
Aged about 41 years,
Son of Sri. B.V. Sampath,
5. Sri. B.S. Ravi,
Aged about 39 years,
Son of Sri. B.V.Sampath,
6. Sri. B.S. Ramesh,
Aged about 28 years,
Son of Sri. B.V. Sampath,
7. Sri. B.S. Manjunath,
Aged about 26 years,
Son of Sri. B.S. Sampath,
Petitioners no. 2 to 7 are
Represented by their POA Holder
Sri. B.V. Sampath.
8. Sri. B.V. Erappa,
Aged about 47 years,
Son of late Sri. Vallappa,
4
All are residing at
Bilekehalli Village,
Bangalore South Taluk,
Bangalore District.
...PETITIONERS
(By Shri. Udaya Holla, Senior Advocate)
AND:
1. State of Karnataka,
By the Principal Secretary,
Department of Housing and Urban Development,
Vikasa Soudha,
Bangalore.
2. Bangalore Development Authority,
By its Commissioner,
Bangalore.
3. Additional Land Acquisition Officer,
Bangalore Development Authority,
Bangalore.
4. Deputy Commissioner,
Land Acquisition,
Bangalore Development Authority,
Bangalore.
...RESPONDENTS
(By Shri. D. Nagaraj, Additional Government Advocate for
Respondent No.1
Shri. Ravi G Sabhahit, Advocate for Respondent Nos. 2 to 4 )
*****
These Writ Petitions filed under Articles 226 and 227 of the
Constitution of India, praying to quash the preliminary
5
notification bearing dated 06.08.1988 issued by the second
respondent (Annexure-C) and the final notification bearing dated
03.11.1990 issued by the 1st respondent vide Annexure-D and the
notice dated 18.1.2010 issued by the respondent no.3 vide
Annexure - L.
These petitions, having been heard and reserved on
22.1.2014 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
ORDER
These petitions are disposed of by this common order. Re.WP 12646/2010 It is stated that the following persons, namely, Chinnappa, Gangappa, R.Muniyellappa, Buddappa, Kakappa, Gurappa and Balappa were said to be absolute owners of property bearing Survey no.173 of Bilekehalli, Begur Hobli, Bangalore South Taluk, measuring about 1 acre and 36 guntas. The same is said to have been acquired under a re-grant order dated 21.5.1983, passed by the Tahshildar, Bangalore South taluk.
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The said owners along with their children are said to have entered into agreements of sale dated 15.5.1985, 4.2.1986 and 17.3.1986 - agreeing to sell the land in favour of the petitioners. They are said to have also executed irrevocable power of attorney simultaneously along with the respective sale agreements, as they are said to have received the entire sale consideration.
It is claimed the petitioners are registered as occupants of the land by the Tahshildar, in case no. HOACR 128/1988-89 and the khatha in respect of the land is said to stand in the name of the petitioners.
On 6.8.1988, a preliminary notification under Section 17(1) of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the "BDA Act", for brevity) is said to have been issued and the land in question, apart from other land, in excess of 66 acres, was proposed to be acquired for the formation of the "Byrasandra Tavarakere Madivala IV Stage Layout". The petitioners and others are said to have filed their objections. 7
It is stated that it is only after a period of 2 years and 3 months that the final notification under Section 19(1) of the BDA Act was issued on 3.11.1990. The possession had remained with the petitioners. Later, as on 18.5.1996, the Revenue Department is said to have conducted a re-survey settlement and had proceeded to assign new survey numbers, namely, Survey no.173/2 to the land of the petitioners and Survey no.173/1 in respect of land belonging to the neighbourers.
It is stated that subsequently, the land came under the jurisdiction of the Bommanahalli Municipal Council and the petitioners' lands were assigned new khatha numbers. The petitioners claim to have paid betterment tax in respect of the land. It is also claimed that the petitioners have been paying taxes regularly over the years and are in continuous possession of the land.
It is claimed that the surrounding lands in the area, which have been notified for acquisition as well, have been completely built -up and that there are private layouts formed therein. The 8 petitioners also claim to have put up factories over the land in question. It is claimed that the BDA has not completed the acquisition proceedings and has not even passed an award in respect of the land in question. It is also stated that as at present, the land is with in the jurisdiction of the Bruhath Bangalore Mahanagara Palike.
It is in this background when it was noticed that the BDA was proceeding to demolish properties in the vicinity of the petitioners' property, without notice to the said owners, and with use of brute force - and police help - on the footing that the said exercise was in furtherance of the acquisition proceedings - the petitioners have approached this court by way of the present petition.
Re: WP 5679-5686/2010 The petitioners claim to be the absolute owners of property bearing Survey no.6 of Bilekahalli, measuring about 1 acre 33 guntas. It is claimed that one Vallappa, the father of petitioners No.1 to 3 and 8 and the grand father of petitioners 4 to 7, was the 9 tenant of the said land. Occupancy rights are said to have been conferred on Vallappa under the provisions of the Karnataka Land Reforms Act, 1961 (Hereinafter referred to as the 'KR Act', for brevity), by an order dated 18.5.1982. RTC records in respect of the lands for the period 1985-86 and other periods are produced.
It is stated that the said land was notified for acquisition under the very notifications referred to in the first of these petitions. It is also claimed that the petitioners have continued to be in possession of the land.
Vallappa is said to have died in the year 1994 and the petitioners are said to have entered into a registered partition deed dated 25.5.2001. The petitioners claim to be in possession of their distinct shares. The Bommannahalli Municipal Council is said to have issued separate Khatha numbers in respect of the same and had been collecting taxes thereof.
It is claimed that just as in the case of the first of these petitions, the entire area is completely built up and there are many apartment complexes and private layouts formed and that the 10 petitioners themselves were in the process of seeking necessary sanctions and permissions to construct apartment complexes. It is stated that suddenly a notice has been issued on 18.1.2010, purportedly under Section 12(2) of the Land Acquisition Act, 1894 (Hereinafter after referred to as the "LA Act" for brevity), though not in the name of any of the petitioners, but in the name of an unknown person, to the effect that an award had been passed in respect of the land in question and that the same had been approved on 11.11.2009. It is in this background that the present petition is filed.
2. The learned Senior Advocate, Shri Udaya Holla, appearing on behalf of the counsel for the petitioners would contend that it is evident that the acquisition proceedings are clearly vitiated. The time lag between the date of final notification and the purported award is clearly inexplicable. The award, if any, having been passed 22 years after the final notification, would clearly indicate that the acquisition proceedings have lapsed by virtue of Section 27 of the BDA Act. 11 The fact that the Scheme of formation of the layout clearly not having been implemented within a period of five years from the date of publication of the notification under Section 19 of the Act, the Scheme shall lapse.
It is further contended that under the final notification, a total extent of 66 acres having been notified for acquisition, it is not known as to how the authorities have now issued the notice of award only in respect of 4 acres of land, including the land of the petitioners alone.
The learned Senior Advocate has placed reliance on a large number of authorities in support of the petitions.
3. Though the respondent - BDA is represented in both these petitions, statement of objections are filed only in the first of these petitions. It is contended therein that the petition is liable to be dismissed on the ground of delay and laches. It is claimed that an award was passed and possession of the lands has been taken in the year 1994 itself. And that the Scheme has been substantially 12 implemented. It is claimed that over 1000 sites have been allotted and hence the petition ought to be dismissed.
4. The petitioners, by way of a rejoinder, have pointed out that in terms of the final notification, a total area of 241.06 acres was sought to be acquired and hence, the claim of having allotted 1000 sites would hardly indicate that the Scheme has been substantially implemented. In any event, even the claims made are false and are not substantiated by producing any material.
Though the record maintained by the BDA in respect of the land in WP 12646-647/2010 are produced, the same does not disclose any acceptable material to substantiate the claim that possession of the land had been taken in the year 1994. A copy of a nebulous mahazar, which is not part of the record produced and which is not attested by any witness is produced separately ,which is not followed by any notification and is, at best, a self serving document and unacceptable in law.
5. In the light of the above glaring circumstances, as it is not the case of the BDA that sites have been formed over the land 13 of the petitioners and when it is also shown that possession is not taken by the BDA, the rigour of Section 27 of the BDA Act would be attracted. The Scheme is certainly to be declared as having lapsed in so far as the land of the petitioners is concerned.
The petitions are accordingly allowed and the impugned acquisition proceedings in so far as the same pertains to the lands of the petitioners are concerned, are quashed.
Sd/-
JUDGE nv*