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Karnataka High Court
Sri.T.M. Shankarappa vs State Of Karnataka on 9 May, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2024:KHC:17141
WP No. 21640 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION No. 21640 OF 2023 (LA-RES)
BETWEEN
1 . SRI.T.M. SHANKARAPPA
S/O LATE SHRI MUNISWAMY
AGED ABOUT 60 YEARS,
2 . SRI T M MUNIRAJU
S/O LATE SHRI MUNISWAMY
AGED ABOUT 55 YEARS,
3 . SRI T M CHANDRAPPA
S/O LATE SHRI MUNISWAMY
AGED ABOUT 61 YEARS,
4 . SMT T M VANAMALA
Digitally
signed by D/O LATE SHRI MUNISWAMY
KIRAN
KUMAR R AGED ABOUT 58 YEARS,
Location:
HIGH
COURT OF
KARNATAKA
5 . SMT JAYALAKSHMI
D/O LATE SHRI MUNISWAMY
AGED ABOUT 55 YEARS,
ALL ARE R/AT TUBARAHALLI VILLAGE,
VARTHUR HOBLI,
BANGALORE EAST TALUK-560066.
...PETITIONERS
(BY SRI.C.M.NAGABHUSHAN, ADVOCATE FOR
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NC: 2024:KHC:17141
WP No. 21640 of 2023
SMT. POONAM.S.PATIL., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY TO
URBAN DEVELOPMENT DEPARTMENT,
VIDHANA SOUDHA
DR AMBEDKAR ROAD
BANGALORE-560001.
2. SPECIAL DEPUTY COMMISSIONER
BANGALORE URBAN DISTRICT
BANGALORE-560001.
3. SPECIAL LAND ACQUISITON OFFICER
BANGALORE DISTRICT
VISVESWARAIAH TOWER,
2ND FLOOR, PODIUM BLOCK
DR AMBEDKAR ROAD
BANGALORE -560001.
4. THE TAHSILDAR
BANGALORE EAST TALUK
BANGALORE -560001.
5. THE BEML EMPLOYEES HOUSE
BUILDING CO OPERATIVE SOCIETY LTD
BEML COMPLEX, C V RAMAN NAGAR,
REPRESENTED BY ITS SECRETARY
...RESPONDENTS
(BY SMT. B.P.RADHA, AGA FOR R-1 TO R-4;
SRI. SREEVATSA, SENIOR ADVOCATE FOR
SRI. B.E.SHREEDHAR, ADVOCATE FOR R-5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARING THAT THE ACQUISITION PROCEEDINGS OF THE
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WP No. 21640 of 2023
LANDS BELONGING TO THE PETITIONERS (SY.No.18/2
MEASURING 32 GUNTAS AND SY.No.23/1 MEASURING 22
GUNTAS IN TUBARAHALLI VILLAGE, VARTHUR HOBLI,
BANGALORE SOUTH, BANGALORE) UNDER PRELIMINARY
NOTIFICATION BEARING No.LAQ(1)SR4/89-90. DATED
26/03/1990 VIDE ANNEXURE-A AND FINAL NOTIFICATION
DATED 12/08/1991 BEARING No.RD188AQB89, VIDE
ANNEXURE-B ARE DEEMED TO HAVE LAPSED UNDER SECTION
2492) OF THE RIGHT TO FAIR COMPENSATION AND
TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND
RESETTLEMENT ACT, 2013 ACT, ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 25.04.2024, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
1. This petition is filed seeking a declaration that the acquisition proceedings, in respect of the lands of the petitioners i.e., Sy.No.18/2 measuring 32 guntas and Sy.No.23/1 measuring 22 guntas of Tubarahalli village, Varthur Hobli, Bangalore South Taluk, Bangalore which were notified under the notification dated 26.03.1990 under Section 4(1) of the Land Acquisition Act, 1894 ("the 1894 Act") and under a declaration dated 12.08.1991 under Section 6(1) of the 1894 Act are deemed to have lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, -4- NC: 2024:KHC:17141 WP No. 21640 of 2023 Rehabilitation and Resettlement Act, 2013, (for short "the 2013 Act").
2. In addition, they are also seeking quashing of the notifications issued under Sections 4 and 6 of the 1894 Act.
3. The following facts are not in dispute:
4. On 26.03.1990, a notification under Section 4(1) of the 1894 Act was issued by the State proposing to acquire 94 acres 34 guntas for the benefit of the BEML Employees House Building Co-operative Society Limited, Bengaluru--respondent No.5 herein. In this notification, the lands bearing Survey No.18/2 measuring 32 guntas and land bearing Survey No.23/1 measuring 09 guntas were also notified.
5. On 12.08.1991, a declaration under Section 6 of the 1894 Act was also issued.
6. In the year 1992, the father of the petitioners-- Muniswamy filed W.P. No.3393 of 1992 challenging the -5- NC: 2024:KHC:17141 WP No. 21640 of 2023 Section 4(1) notification dated 26.03.1990 and also the 6(1) declaration dated 12.08.1991. This Court by an order dated 06.11.1996, however, dismissed said writ petition.
7. It is stated that this order dismissing W.P. No.3393 of 1992 was not challenged by filing an appeal and had attained finality.
8. It may be pertinent to state here that a notification under Section 16(2) was also published on 23.09.1993. The consequence of issuance of the 16(2) notification, in which possession of the land bearing survey Nos.18/2 and 23/1 was stated to have been taken on 01.09.1993, is that those lands stood vested in the State free from all encumbrances and, as a consequence, the land owners had lost all their rights over them.
9. It may be pertinent to state here that the writ petition filed by the father of petitioners in W.P. No.3393 of 1992 was dismissed by a common order dated 06.11.1996 wherein a batch of writ petitions were -6- NC: 2024:KHC:17141 WP No. 21640 of 2023 dismissed. One of the petitions which were dismissed was one filed by Yellappa in W.P.No.22034 of 1990.
10. Notwithstanding the dismissal of all the writ petitions by a common order, Yellappa--the petitioner in W.P. No.22034 of 1990 had chosen to prefer one more writ petition in W.P. No.36830 of 2003 and said writ petition was dismissed by an order dated 20.10.2003 on the ground that the earlier challenge had failed and it was not permissible for the petitioner to file a second writ petition.
11. On 14.09.2001, the Bangalore Development Authority ("the BDA") had approved a layout plan in favour of respondent No.5--Society. In this layout plan, it is stated that the land of the petitioners had not been included, thereby establishing that the possession had not been taken.
12. On the strength of the liberty reserved to Yellappa to approach a Civil Court, on 09.11.2003, the present petitioners instituted a suit in O.S.No.7881 of 2003 -7- NC: 2024:KHC:17141 WP No. 21640 of 2023 seeking a declaration that the acquisition proceedings initiated by issuance of notification under Sections 4 and 6 of the 1894 Act was bad in law and against public policy. They also sought a declaration that W.P. No.3393 of 1992 had not been filed by them and the same had been manipulated at the instance of the 5th respondent-- Society.
13. In this suit, the 5th respondent--Society had entered appearance and also filed a written statement and also an application to reject the plaint. The Civil Court, by an order dated 12.12.2007, proceeded to reject the plaint. It is stated by the 5th respondent that this rejection of the plaint has also not been challenged and it has thus attained finality.
14. It is pertinent to state here that on 29.05.2004, the BDA approved the modified layout plan, and it is admitted that in this modified layout plan, the lands claimed by the petitioners were also included. -8-
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15. On 12.04.2005, the 5th respondent--society had executed a relinquishment deed, in which it is recorded that Survey Nos.23/1A, 23/1B, 23/1C had been reserved for a park, was being relinquished by the society. It is also stated that in survey No.18/2, sites have been formed.
16. It is thus clear that way back in the year 2005, the Society had relinquished its title in favour of the BDA in respect of Survey No.23/1.
17. It is also stated by the 5th respondent--Society that in the year 2006, sale deeds have been executed in favour of the allottees, and copies of the sale deeds and the other related documents such as khata certificates and tax paid receipts have also been produced.
18. Notwithstanding the rejection of the plaint in O.S. No.7881 of 2003, the petitioners filed W.P.27996 of 2010 seeking issuance of a direction to the State to consider their request to de-notify the lands, and this Court, by an order dated 09.02.2012 disposed of said writ petition by permitting the petitioners to submit their representations. -9-
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19. It is the case of the petitioners that pursuant to said order, the de-notification committee had decided to seek a legal opinion regarding the denotification, since reports suggested that the petitioners were in possession. It is also stated that on 05.08.2014, a legal opinion was furnished by the Law Department stating that there is no scope for withdrawal of the application and, thereafter, the State sought a report from the Special Land Acquisition Officer ("the SLAO"), who, in turn, submitted a report dated 08.07.2016 to the effect that the petitioners were in possession. It is stated that the State thereafter observed that the Law Department had not considered the effect of Section 24(2) of the 2013 Act and the Law Department had concurred that the acquisition proceedings had lapsed under Section 24(2) of 2013 Act.
20. On the other hand, the society contends that they had filed O.S. No.6313 of 2017 seeking a decree of injunction in respect of Survey No.23/1 which had been earmarked as a park and also in respect of Survey
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NC: 2024:KHC:17141 WP No. 21640 of 2023 No.18/2 wherein sites have been formed. They also stated that the 10 allottees, i.e., the members who had been allotted sites had also filed separate suits along with the Society and by a judgment and decree dated 07.07.2023, all the 11 suits i.e., the suit filed by the Society and the suits filed by the allottees were decreed.
21. From the facts narrated above, it is clear that the challenge to the acquisition by the father of the petitioners ended in a dismissal way back in the year 1996 and this order has attained finality. The subsequent attempt to get a declaration from the Civil Court by filing O.S. No.7881 of 2003 also stood repelled by the rejection of the plaint.
22. Notwithstanding the above facts, the present writ petition has been filed on 21.09.2023 seeking a declaration that the acquisition proceedings have lapsed by virtue of Section 24(2) of the 2013 Act.
23. The learned counsel appearing for the petitioners contended that the possession had remained with the petitioners and, therefore, Section 24(2) would come into
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NC: 2024:KHC:17141 WP No. 21640 of 2023 operation. He also submitted that there no award had been passed and, on that score also, the acquisition proceedings are liable to be quashed. He submitted that the Supreme Court in Indore Development Authority1 has clearly held that if possession of lands were not taken after five years after 01.01.2014, the proceedings would be deemed to have lapsed, and since the material on record including the report of the SLAO indicates that they were in possession, it was clear that the acquisition proceedings had lapsed.
24. The learned senior counsel appearing for the Society, on the other hand, contended that the assertion that no award had been passed is absolutely false, in view of the fact that a notification under Section 16(2) of the 1894 Act was issued way back in the year 1993, which, by itself, indicated that the lands stood vested in the State free from all encumbrances in the year 1993. 1 Indore Development Authority v. Manoharlal, 2020 AIR 1496.
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25. The learned senior counsel argued that the Civil Court had recorded earlier finding that the allottees were in possession and the Society had formed the layout, while decreeing the suits filed by the Society and the allottees, and in light of this finding regarding possession recorded by the Civil Court, the entire argument of the petitioners that they were in possession could have been rejected. He also submitted that the fact that the petitioners sought denotification, by itself, presupposes that the lands had been validly acquired and it cannot therefore be permitted to urge that no award had been passed.
26. In light of the above, the only question that will have to be decided in this case is as to Whether the petitioners can seek a declaration that the acquisition proceeding have lapsed by virtue of Section 24(2) of the 2013 Act on the ground that they have continued in possession.
27. As already noticed above, the challenge to the acquisition stood negated way back in the year 1996 itself
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NC: 2024:KHC:17141 WP No. 21640 of 2023 and this has attained finality. It is also not in dispute that an attempt to get a declaration that the acquisition was bad in law and the writ petition filed by the father of the petitioners were not actually filed by him, but was a result of manipulation by the Society, has also stood negated by the rejection of the plaint in O.S. No.7881 of 2003 and this was way back in the year 2007. As a consequence of this, it will have to be held that validity of acquisition is no longer in question and has stood concluded. It would therefore not be permissible for the petitioners to pout forth any contention regarding the validity of the acquisition.
28. It is to be noticed here that the challenge to the acquisition came to an end way back in the years 1996 and 2007 itself, but yet, this petition has been filed in the year 2023, i.e., after lapse of 16 years from the date of rejection of the plaint contending that the acquisition stood lapsed by virtue of Section 24 (2) of the 2013 Act.
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29. The Apex Court in Indore Development Authority (supra) has held as follows:
"359. We are of the considered opinion that Section 24 cannot be used to revive dead and stale claims and concluded cases. They cannot be inquired into within the purview of Section 24 of the Act of 2013. The provisions of Section 24 do not invalidate the judgments and orders of the Court, where rights and claims have been lost and negatived. There is no revival of the barred claims by operation of law. Thus, stale and dead claims cannot be permitted to be canvassed on the pretext of enactment of Section 24. In exceptional cases, when in fact, the payment has not been made, but possession has been taken, the remedy lies elsewhere if the case is not covered by the proviso. It is the Court to consider it independently not under section 24(2) of the Act of 2013."
30. As could be seen from the above passage, the Hon'ble Supreme Court has categorically held that the decision rendered in Indore Development Authority (supra) cannot give rise to a new cause of action for landowners to revive stale claims. Having regard to the
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NC: 2024:KHC:17141 WP No. 21640 of 2023 fact that the challenge to acquisition stood negated in the year 1996, and in the year 2007, it would not be open for the petitioners to place reliance on Indore Development Authority (supra) to contend that the acquisition had lapsed.
31. It may also be noticed here that the assertion that the petitioners are in possession cannot be accepted, simply because there was already a notification issued under Section 16(2) of the 1894 Act in the year 1993 indicating that the possession of the lands were taken and, more importantly, because of the finding recorded by the Civil Court that the Society and the allottees were in possession.
32. In light of the fact that the competent Civil Court has recorded a clear finding that the society and its allottees are in possession, the entire set of arguments that the petitioners were in possession and that this was accepted by the Governmental Authorities, cannot be accepted.
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33. It may also be pertinent to state here that the petitioners had admittedly sought denotification of their lands and had also filed a writ petition in this regard. This particular fact, by itself, establishes that the lands were acquired and, hence, the argument that no award had been passed would be unavailable to the petitioners.
34. In the result, I see no merit in this writ petition and the same is accordingly dismissed.
Sd/-
JUDGE GSR/RK CT: SN