Shri D L K Kannan vs The State Of Karnataka
2021 Latest Caselaw 3675 Kant

Citation : 2021 Latest Caselaw 3675 Kant
Judgement Date : 9 November, 2021

Karnataka High Court

Shri D L K Kannan vs The State Of Karnataka on 9 November, 2021

Bench: Ashok S.Kinagi

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 9TH DAY OF NOVEMBER 2021

                      BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

  WRIT PETITION NO.49913 OF 2014 (LA-BDA)

BETWEEN:

SHRI D L K KANNAN
S/O LATE SHRI D LAKSHMAN DAS CURLEY,
(SINCE DEAD THROUGH LEGAL REPRESENTATIVES)

1(A) SRI. L. K. PRABHAKARAN
     S/O LATE D L K KANNAN
     AGED ABOUT 63 YEARS
     R/AT NO. 41/304, SIXCON APTS,
     EIJIPURA MAIN ROAD,
     VIVEK NAGAR POST,
     BANGALORE-560047.

1(B) SMT. L. K. KALAVATHI
     D/O LATE D L K KANNAN
     AGED ABOUT 60 YEARS
     R/AT NO. 41/304, SIXCON APTS,
     EIJIPURA MAIN ROAD,
     VIVEK NAGAR POST,
     BANGALORE-560047.
                                        ...PETITIONERS

(BY SMT. S. SUDHEELA, SR. COUNSEL FOR
    SRI. T. R. RAMESH, ADV.)

AND
                           2




1.   THE STATE OF KARNATAKA
     DEPARTMENT OF HOUSING AND
     URBAN DEPARTMENT,
     VIKASA SOUDHA, DR. AMBEDKAR VEEDHI,
     BANGALORE-560 001,
     BY ITS SECRETARY.

2.   THE BANGALORE DEVELOPMENT AUTHORITY
     T.CHOWDAIAH ROAD,
     KUMARPARK WEST, BANGALORE-20,
     BY ITS COMMISSIONER.

3.   THE ADDITIONAL LAND ACQUISITION OFFICER
     THE BANGALORE DEVELOPMENT AUTHORITY,
     T.CHOWDAIAH ROAD, KUMARPARK WEST,
     BANGALORE-20
     BY ITS COMMISSIONER.
                                   ...RESPONDENTS

(BY SMT. H. C. KAVITHA, HCGP FOR R1
    SRI. B. S. SACHIN, ADV. FOR R2 AND R3)


     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE PRELIMINARY NOTIFICATION ISSUED BY
THE R-1 UNDER SECTION 17(1) & (3) OF THE BANGALORE
DEVELOPMENT ACT, UNDER PRELIMINARY NOTIFICATION
DTD.8.9.1987 AND FINAL NOTIFICATION DTD.28.7.1990,
VIDE ANNEX-A AND ANNEX-B PASSED BY R-2 IN SO FAR
AS THE LANDS OF THE PETITIONER IN SY.NO.39/2,
WHICH IS MENTIONED AS 36/2A SITUATED AT HULIMAVU
VILLAGE, BAGUR HOBLI, BANGALORE SOUTH TALUK,
MEASURING TO AN EXTENT OF ONE ACRE AND TWENTY
THREE AND HALF GUNTAS, IS CONCERNED.

     THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
                                  3




                           ORDER

The petitioner being aggrieved by the

preliminary notification issued by respondent No.1

under Section 17(1)&(3) of the Bangalore

Development Authority Act ('the BDA Act' for short),

dated 08.09.1987, and final notification dated

28.07.1990 vide Annexures 'A' and 'B', respectively,

has filed this petition.

2. Brief facts leading rise to filing of this petition

are as under:

The petitioner claims to be the absolute owner in

lawful possession of land bearing Sy.No.39/2 situated

at Hulimavu Village, Bagur Hobli, Bangalore South

Taluk measuring 1 acre 23½ guntas. It is the case of

the petitioner that the petitioner had purchased the

property under registered sale deed dated

15.07.1974. Respondent No.2 notified the land

owned by the petitioner for the public purpose namely

'Byrasandra Thavarekere Madivala VI Stage Layout'

under preliminary notification dated 08.09.1987 and

the petitioner was not served with the copy of

acquisition notification as required under law.

Further, final notification was issued on 28.07.1990.

The petitioner being aggrieved by the said

notifications, filed this writ petition on the ground that

the respondents, despite acquiring the land in

question, have never passed any award and further no

layout has been formed and the scheme for the

purpose for which the land in question was acquired,

was never implemented. Section 27 of the BDA Act

mandates that the scheme for which the acquisition of

land were notified, has to be implemented within 5

years. It is contended that despite lapse of 36 years,

admittedly, no scheme has been implemented. Hence

this writ petition.

3. Respondent Nos.2 and 3 filed statement of

objections wherein respondent No.3 has fairly

conceded that award in respect of Sy.No.39/2

measuring 1 acre 23½ guntas was not passed.

4. Heard Smt. S. Susheela, learned Senior

counsel for petitioner and learned counsel for

respondents.

5. Learned Senior counsel for the petitioner

submits that though respondents have issued

preliminary notification and also final notification

acquiring the land of the petitioner, no award was

passed and she further submits that respondents have

not implemented the scheme for which it was

acquired. She further submits that as per Section 27

of the BDA Act, the scheme has lapsed. In support of

her submission, she places reliance on the judgment

of this Court passed in W.P.Nos.11125 and

12140/163/2014, disposed of on 29th September

2021. Hence, on these grounds, she prays to allow

the writ petition.

6. Per contra, learned counsel for the

respondent Nos.2 and 3 fairly concedes that no award

has been passed in respect of the land in question and

he also concedes that the scheme has been lapsed in

view of Section 27 of the BDA Act.

7. Perused the records and considered the

submissions made by learned counsel for the parties.

8. It is not in dispute that the petitioner is the

owner of land in question. It is also not in dispute

that the notifications were issued by the respondents

inviting the land of the petitioner and other lands for

acquisition and admittedly no award was passed till

date, even after lapse of nearly 33 years from the

date of issuance of final notification and scheme has

not been implemented within the time prescribed

under Section 27 of the BDA Act which reads as

under:

"27. Authority to execute the scheme within five years - Where within a period of five years from the date of the publication in the Official Gazette of the declaration under sub-section (1) of Section 19, the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative."

Section 27 provides that the authority is required to

implement the scheme for the purpose for which it

was acquired, within five years from the date of

publication in the Official Gazette of the declaration.

If the authority fails to execute the scheme, the

scheme shall lapse.

9. Admittedly, preliminary notification was

issued on 08.09.1987 and final notification was issued

on 28.07.1990. The authorities have failed to execute

the scheme within a period of five years from the date

of publication in the Official Gazette. The respondent

failed to exercise its power in a reasonable manner or

within a reasonable period. Thus the entire

acquisition proceedings have to be declared as having

been abandoned and consequently lapsed.

10. In view of the above discussion, I proceed

to pass the following:

ORDER

The writ petition is allowed.

The preliminary notification dated 08.09.1987, and final notification dated 28.07.1990, vide Annexures 'A' and 'B', respectively, are hereby quashed and set aside.

It is declared that the scheme has lapsed and in fact, is abandoned by respondent - BDA with respect to the land in question belonging to the petitioner.