Karnataka High Court

Sri S Jagannath vs The Bengaluru Development ... on 30 June, 2021

Author: Alok Aradhe Chandangoudar

                               1



 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 30TH DAY OF JUNE 2021

                        PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

 THE HON'BLE MR.JUSTICE HEMANT CHANDANGOUDAR

           W.A. NO.5623 OF 2017 (LA-BDA)
                         IN
               W.P. No.46350/2015 &
           W.P.Nos.4996-97/2016 (LA-BDA)

BETWEEN:

1.   SRI. S. JAGANNATH
     S/O LATE SRI. SEETHARAMIAH
     AGED ABOUT 57 YEARS
     TALAGHATTAPURA
     UTTARAHALLI HOBLI
     BENGALURU SOUTH TALUK-560109.

2.   SRI. S. MOHAN KUMAR
     S/O LATE SRI. SEETHARAMIAH
     AGED ABOUT 52 YEARS
     TALAGHATTAPURA
     UTTARAHALLI HOBLI
     BENGALURU SOUTH TALUK-560109.

3.   SRI. S. SOMASHEKAR
     S/O LATE SRI. SEETHARAMIAH
     AGED ABOUT 44 YEARS
     TALAGHATTAPURA, UTTARAHALLI HOBLI
     BENGALURU SOUTH TALUK-560109.

                                         ... APPELLANTS
(BY MR. R. MANJUNATH, ADV.,)
                                 2



AND:


1.     THE BENGALURU DEVELOPMENT
       AUTHORITY
       REP. BY ITS COMMISSIONER
       K.P. WEST, BENGALURU 560020.

2.     SPECIAL LAND ACQUISITION OFFICER
       BENGALURU DEVELOPMENT AUTHORITY
       K.P. WEST, BENGALURU 560020.

3.     STATE OF KARNATAKA
       REP. BY ITS SECRETARY
       DEPARTMENT OF HOUSING & URBAN
       DEVELOPMENT, VIKASA SOUDHA
       BENGALUR-560 001.

4.     SMT. CHAMPA V
       AGED ABOUT 32 YEARS
       D/O SRI. VENKATRAMANASWAMY
       R/AT. NO.40, 2ND FLOOR
       HARSHA LAYOUT, YELACHENAHALLI
       BENGALURU-560062.

5.     DR. SUMA JAYARAM
       AGED ABOUT 33 YEARS
       W/O SRI. MAHESH
       R/AT. NO.91, 3RD CROSS
       TELECOM COLONY
       NTY LAYOUT
       BENGALURU-560026.

6.     SRI. N. PAKKIRISAMY
       AGED ABOUT 65 YEARS
       S/O LATE NAGAIAH
       R/AT. NO.84/2, 2ND CROSS
       8TH MAIN, 3RD BLOCK EAST
       JAYANAGAR, BENGALURU-560011.

(IMPLEADING APPLICATION ALLOWED VIDE
ORDER DATED 30.06.2021)
                                       ... RESPONDENTS

(BY MR. D.N. NANJUNDA REDDY, SR. COUNSEL FOR
                                  3



   MR. SHANKARANAYANA BHAT, ADV., FOR APPELLANT
   FOR IMPLEADING APPLICANTS ON I.A.1/19
   MR. VIVEK YAVAGAL, ADV., FOR R1 & R2
   MR. MATAPATHI, AGA FOR R3)
                           ---

      THIS W.A. IS FILED UNDER SECTION 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED
11.8.2017 PASSED IN THE WRIT PETITION No.46350/2015 AND
WRIT PETITION Nos.4996-97/2016.

     THIS W.A. COMING ON FOR ORDERS,                      THIS     DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                         JUDGMENT

In this intra Court appeal filed under Section 4 of the

Karnataka High Court Act, 1961, the appellants have assailed

the validity of the order dated 11.08.2017 passed by the

learned Single Judge, by which writ petition preferred by the

appellants has been dismissed on the ground that the

challenge made by the appellants to the acquisition

proceedings in the earlier round of litigation has already been

negtived by this court. In order to appreciate the appellants

grievance, few facts need mention which are stated infra.

2. The appellants were the owners of land

measuring 1 acre and 18 guntas of Survey No.16/5 at

Talaghattapura Village, Uttarahalli Hobli, Bangalore South

Taluk. The aforesaid land was required for extension of

layout in respect of Banashankari VI Stage. Thereupon the

proceedings under the Bangalore Development Authority Act,

1976 (hereinafter referred to as 'the Act' for short) were set

in motion and a preliminary Notification under Section 17(1)

of the Act was issued on 07.11.2002 and a final Notification

was issued on 09.09.2003 under Section 19(1) of the Act.

Admittedly, the award was passed on 31.01.2004. The

appellants submitted a representation to the Bangalore

Development Authority (hereinafter referred to as 'the

Authority' for short), in which a prayer was made to drop the

acquisition proceedings in respect of their lands. The

aforesaid representation was rejected by order dated

19.12.2007. The appellants assailed the validity of the

aforesaid representation in a writ petition viz.,

W.P.No.14116/2008, which was dismissed by learned Single

Judge of this court by an order dated 29.06.2010. The

aforesaid order was affirmed by a division bench of this court

in a writ appeal in W.A.No.4229/2011 by an order dated

05.01.2012.

3. The appellants thereupon approached the

Supreme Court by filing Special Leave Petition (Civil)

No.9712/2012, which was dismissed by the Supreme Court

by an order dated 02.04.2012. The appellants filed a review

petition before the Supreme Court, which was dismissed on

27.11.2012. Thereafter, the appellants filed a writ petition

viz., W.P.No.46350/2015 and W.P.Nos.4996-97/2016 in

which a declaration was sought that scheme for formation of

further extension of Banashankari VI Stage Layout insofar as

it pertains to the land held by the appellants viz., survey

No.16/5 measuring 1 acre and 18 guntas has lapsed. The

appellant also sought for a relief of quashment of the

preliminary Notification as well as final Notification issued

under Section 17(1) & 19(1) of the Act dated 07.11.2002 and

09.09.2003. The said writ petition was dismissed by learned

Single Judge of this court by an order dated 11.08.2017 inter

alia on the ground that the appellants have lost in previous

round of litigation up to Supreme Court. In the aforesaid

factual background, this appeal has been filed.

4. Learned counsel for the appellants at the outset

submitted that the appellants are giving up the challenge to

the acquisition proceedings on the ground of Section 24(2) of

The Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013

(hereinafter referred to as 'the 2013 Act' for short) is not

applicable in respect of the acquisition made under the Act,

in view of the law laid down by division bench of this court in

judgment dated 01.12.2020 passed in W.A.No.1415/2018

(L.Rama Reddy vs. State of Karnataka and Others).

However, it is submitted that the learned Single Judge

grossly erred in dismissing the writ petition preferred by the

appellants on the ground that the challenge of the appellants

to the land acquisition proceeding in the earlier round of

litigation was unsuccessfully put through the Supreme Court.

It is further submitted that the learned Single Judge ought to

have appreciated that the appellants in the earlier round of

litigation did not challenge the acquisition proceedings on the

ground that the same has lapsed under Section 27 of the Act.

Therefore, the learned Single Judge ought to have

entertained the writ petition and ought to have adjudicated

the same on merits. It is also urged that the possession of

the land in question has not been taken from the appellants

in accordance with law and the appellants continued to be in

possession of the land in dispute. It is also urged that

neither layout in respect of the land in question has been

formed by the authority nor any sanction has been granted

to the layout. It is also submitted that the layout plan has

also not been approved, therefore, the scheme has lapsed

under Section 27 of the Act. In support of aforesaid

submissions, reliance has been placed on decisions in

'SRI.L.RAMAREDDY VS. THE STTE OF KARNATAKA &

OTHERS', W.A.No.1415/2018, 'BANGALORE

DEVELOPMENT AUTHORITY & ANOTHER VS. THE STATE

OF KARNATAKA & OTHERS', CIVIL APPEAL NOS.7661-

7663/2018          AND    BANGALORE          DEVELOPMENT

AUTHORITY      &    ANOTHER       VS.   SRI.VISHWANANTHA

REDDY & OTHERS', W.A.No.947/2016.

5. On the other hand, learned Senior counsel for the

Authority submitted that the preliminary Notification as well

as the final Notification under Section 17(1) & 19(1) of the

Act respectively were issued on 07.11.2002 and 09.09.2003

and the award has been passed on 31.01.2004. It is also

submitted that the possession of the land in question has

been taken on 19.03.2004 and compensation has been

deposited in the Reference Court on 19.02.2004. It is also

argued that Notification under Section 16(2) of the Land

Acquisition Act, 1894 (hereinafter referred to as 'the 1894

Act' for short) was issued on 28.06.2007 and layout plan has

already been approved on 07.09.2003. It is also urged that

the writ petition filed by the appellants suffers from

inordinate delay and laches.

6. Our attention has also been invited to the

observations made by the division bench vide judgment

dated 05.01.2012 passed in W.A.No.4229/2011 and to the

order dated 02.04.2012 passed in Special Leave Petition

No.9712/2012. It is also pointed out that the appellants have

sold part of the land and therefore the appellants have no

subsisting interest in the land in question. After having sold

part of the land, it is not open for the appellants to contend

that the scheme under Section 27 of the Act has lapsed. It is

also urged that while deciding the question whether or not

the scheme under Section 27 of the Act has lapsed, the test,

which is to be applied is whether or not the scheme has been

implemented substantially and not with reference to specific

part of land. It is also contended that the Bangalore

Development Authority has formed a layout and has allotted

the sites to several persons about 10 years ago. In support

of aforesaid submissions, reliance has been placed on

division bench decision of Supreme Court in 'S.JAGANATH &

ORS. VS. BANGALORE DEV. AUTHORITY AND ANR.', SLP

'MEENAKSHI THIMMAIAH AND OTHERS VS. STATE OF

KARNATAKA BY ITS SECRETARY, URBAN

DEVELOPMENT DEPARTMENT AND ANOTHER', ILR 2020

KAR 62 and 'DR.A.PARTHASARATHY AND OTHERS VS.

STATE OF KARNATAKA, BY ITS PRINCIPAL SECRETARY,

URBAN DEVELOPMENT DEPARTMENT AND OTHERS',

ILR 2017 KAR 3489.

7. Learned Senior counsel for the allottee submitted

that the sites have been allotted to them in the layout in

question by the Authority. It is however, pleaded that on

account of interim order passed by this court, the allottees

could not carry on any construction activity in the land in

question. It is also urged that no case for interference at this

point at the instance of the appellants is made out.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

Admittedly, the preliminary Notification under Section 17 of

the Act was issued in respect of the land in question including

the other lands on 07.11.2002. The final Notification under

Section 19(1) of the Act was issued on 09.09.2003 and the

award was passed on 31.01.2004. It is also not in dispute

that the Authority has tendered the amount of compensation

on 19.02.2004. It is pertinent to note that the Notification

under Section 16(2) of the 1894 Act was issued on

28.06.2007. At this stage, it is pertinent to take note of

Section 16(2) of the Act, which in its application in respect of

State of Karnataka reads as under:

16. The fact of such taking possession may be notified by the Deputy Commissioner

in the Official Gazette, and such Notification shall be evidence of such fact.

9. Thus, from perusal of 16 (2) of the Act, it is

evident that the aforesaid provision raises a statutory

presumption with regard to taking of possession. In the face

of Notification dated 28.06.2018 on record, which raises

statutory presumption with regard to taking of the

possession, the contention of the learned counsel for the

appellants that the possession of the land in question has not

been taken in accordance with law cannot be accepted as

there is a presumption with regard to regularity of taking of

possession, which is evidenced by issuance of a Notification

under Section 16(2) of the Act. It is pertinent to note that in

the earlier round of litigation viz., W.P.No..13267/2005, the

appellants had sought for the following reliefs:

(i) quashment of the endorsement dated 29.12.2007 by which their prayer for deletion of land from the acquisition was rejected.

(ii) A direction to the respondents to delete the land from acquisition under the Notification dated 17.11.2002 and 09.09.2003

issued under Section 19 of the Act as was done in respect of land bearing Sy.No.76/5, 76/6/, 16/1, 16/3, 16/4, 16/5 and 19.

10. The aforesaid writ petition was disposed by

learned Single Judge of this court by an order dated

17.01.2007 with a direction to the authority to consider the

representation, which was rejected by the authority by an

endorsement dated 29.12.2007. The aforesaid order was

subject matter of challenge in W.P.No.14116/2008, which

was dismissed by learned Single Judge by order dated

29.06.2010. The aforesaid order was challenged by the

appellants in a writ appeal viz., W.A.No.4229/2011, which

was dismissed by division bench of this court with the

following observations:

Accordingly, it is manifestly clear that the appellants have no right to file the present writ appeal. Even otherwise, compensation having been determined and possession having been taken over, no subsisting rights enure in favour of the appellants or even the subsequent purchasers.

Dismissed.

11. The aforesaid order was challenged by the

appellants before the Supreme Court. The Supreme Court by

an order dated 02.04.2012 passed in SLP (c) No.9712/2012

dismissed the civil appeal. The relevant extract of the order

reads as under:

In our view, the learned Single Judge of the High Court was right in observing that the petitioners conduct is reprehensible and they are not entitled to any relief under Article 226 of the Constitution. What is most surprising is that the petitioners had the audacity to sell the land which stood acquired as early as in 2003. Not only this, they sought intervention of the Court after accepting the compensation determined by the Land Acquisition Officer. This being the position, the High Court was fully justified in rejecting their prayer for issue of a direction to the respondents to release the acquired land.

We also do not find any merit in the submission of Shri.Bhat that the petitioners land should have been released as was done in other cases. The site plan produced by Shri.Bhat does not conclusively establish that the land sought to b e released was part of BDA layout.

The appeal leave petition is accordingly dismissed.

12. Thus, the Supreme Court has held that the

conduct of the appellants is reprehensible and they are not

entitled to any relief under Article 226 of the Constitution of

India. It has also been noticed by the Supreme Court that

the appellants had the audacity to sell the land, which was

acquired in as early as in 2003. The relief claimed by the

appellants that their land should be released as has been

done in other cases has also been negatived by the Supreme

Court.

13. After dismissal of the Special Leave Petition, the

appellants undeterred filed writ petition viz.,

W.P.No.46350/2015, in which following prayer was made:

(a) Declare that the scheme of the formation of the further extension of BSK 6th Stage in Sy.No.16/5 measuring 1 acre 18 guntas situated at Talaghattapura Village, Uttarahalli Hobli, Bangaluru South Taluk has lapsed under

Section 27 of the BDA Act and consequently, the BDA cannot implement schemes.

(b) Consequently this Hon'ble Court be pleased to issue writ in the nature of the certiorari quashing the impugned Notification dated 07.11.2002 bearing No.BDA/SLAO/A4-PR 194/Bangalore vide Annexure-A and final Notification dated 09.09.2003 bearing No.NA AA EE/750/BANG/LA/2003 Bangalore vide Annexure-B as far sa they relate to the petitioners and whose names are shown at Sl.No.231 and 129 in the preliminary and final Notification with respect to the land bearing SyNo.16/5 of Talaghattapura Village, Uttarahalli Hobli, Bengaluru South Taluk.

(c) Issue a writ in the nature of mandamus directing the respondents not to disturb the physical possession and enjoyment of the petitioners with respect to the land in question.

14. It is not in dispute that the contention that

scheme under Section 27 of the Act has lapsed became

available to the appellants on 09.09.2008 i.e., after a lapse

of 5 years from the date of acquisition of the land in

question. It is also not in dispute that petitioners had filed

the earlier writ petition in the year 2008, which was disposed

of in the year 2010. However, it is noteworthy that the

appellants had not amended the writ petition and sought the

relief of lapsing of the scheme under Section 27 of the Act

after a period of 7 years from the cause of action being

available to the appellants to seek the relief. The writ petition

suffered from inordinate delay and laches and therefore,

even otherwise could not have been entertained.

15 It is trite law that when there is an inordinate

delay in filing a writ petition challenging the acquisition

proceedings and where all steps taken in acquisition

proceeding have become final, the court should loath to

quash the Notification The discretionary jurisdiction while

dealing with land acquisition proceedings in a writ petition

which suffers from inordinate delay and laches has to be

exercised with great circumspection. [See:'MUNICIPAL

CORPORATION OF GREATER BOMBAY VS. INDUSTRIAL

DEVELOPMENT INVESTMENT CO. PVT. LTD. & ORS.

(1996) 11 SCC 501, 'MUNICIPAL COUNCIL,

AHMEDNAGAR & ANR. VS. SHAH HYDER BEIG & ORS.,

(2000) 2 SCC 48, 'SWAIKA PROPERTIES PVT. LTD AND

ORS. VS. STATE OF RAJASTHAN AND ORS.', AIR 2008

SC 1494, 'JASVEER SINGH AND ORS. VS. STATE OF

UTTAR PRADESH AND ORS', 2017 (6) SCC 787]. In the

instant case, no plausible explanation has been offered by

the respondents for approaching the court after an inordinate

delay of 7 years. Therefore, the contention that the scheme

has lapsed under Section 27 of the Act need not be examined

under Article 226 of the Constitution of India as the aforesaid

petition was barred by delay and laches.

16. Besides that, it is pertinent to note that the

division bench of this court as well as the Supreme Court has

held that the conduct of the appellants is reprehensible and

they even had the audacity to sell part of the land even after

acquisition, which was acquired in the year 2003. The

Supreme Court has dealt with the prayer of the appellants

with regard to release of the land as was done in other cases

and the same has also been rejected.

17. Even otherwise, there is no merit in the challenge

of the appellants to the lapsing of the scheme under Section

27 of the Act. It is pertinent to note that the lapse under

Section 27 of the Act would lapse only if two conditions are

satisfied i.e., (i) failure to execute the scheme by dereliction

by statutory duties without justification and (ii) substantial

execution of the scheme depending upon the scheme. [See:

'KRISHNAMURTHY VS. BDA', ILR 1996 KAR 1258].

Similarly, in BANGALORE DEVELOPMENT AUTHORITY VS.

DR.H.S.HANUMANTHAPPA, ILR 1996 KAR 642, a division

bench of this court held that the scheme would lapse under

Section 27 of the act provided that the authorities fails to

execute the scheme substantially which indicates that

Section 27 will be attracted only in cases where the

authorities is in position to implement the scheme and has

filed to do so. In Krishnamurthy vs. Bangalore Development

Authority', ILR 1996 KAR 1258, it has been held by division

bench of this court that provisions of Section 27 of the Act

prescribes that failure of the authority to execute the scheme

must be in respect of substantial part of the scheme. In the

backdrop of aforesaid settled position, the averments made

by the appellants may be seen. The relevant extract of the

writ petition reads as under:

(a) The petitioners submit that the Notification for acquisition of land vide Annexure A & B are erroneous and arbitrary as the land is not required by the BDA and the scheme of the BDA has not lapsed under Section 27 of the BDA Act, since the BDA has not formed any layout in the land in question or in the surrounding lands. The oblique motive of issuing preliminary and final notification to acquire the land in question is evident from the fact that the respondents have denotified number lands situated in and around the land belonging to these petitioners and those lands are situated within a radius of 100 meters and even less.

18. Thus, the Authority has filed additional statement

of objection, in which it has been stated as follows:

1. A total extent of Seven Hundred and Fifty (750) acres of land was notified in the Final Notification issued for formation of further extension of Banashankari VI Stage Layout. It is submitted that out of the said Seven Hundred and Fifty (750) acres, an extent of Five Hundred

and Seventy Six (576) acres 9 (09) guntas was handed over to the Engineering Section. The respondents - Bengaluru Development Authority has formed a layout in Four Hundred and Seventy Thousand Nine Hundred and Ninety One (5991) sites and allotted to various persons. It is submitted that the remaining extent of One Hundred and Five (105) acres and Thirty Three (33) guntas, layout could not be formed because Sy.No.5P of U.M.Kaval Village (Thurahalli Gudda Minor Forest) measuring Forty Two (42) acres was declared as a minor forest. It is further submitted that an extent of Nineteen (19) guntas in Sy.No.73 of Thalagattapura Village in Thalagattapura Lake was notified and handed over to the Engineering Section by mistake. In respect of remaining Forty Five (45) Acres Five (05) guntas of land, there are court cases pending. These respondents produce herewith particulars of lands handed over, utilized, number of sites formed etc., for the formation of layout in tabular column as Annexure-R5. These respondents submit that the scheme has been implemented substantially and therefore there is no violation of Section 27 of the BDA Act, 1976.

19. Thus, from the stand taken by the authority, it is

evident that the authority had pleaded before the learned

Single Judge that the scheme has been substantially

implemented. No rejoinder has been filed on behalf of the

appellants in rebuttal of the stand taken by the Authority.

Even otherwise, no averments have been made by the

appellants to plead that the scheme has lapsed as the

Authority failed to execute the scheme on account of

dereliction of statutory duty without justification. On the

other hand, the material on record indicates that the scheme

was executed substantially. Thus, for the aforementioned

reasons, we hold that the writ petition filed by the appellants