Sri M Devendra vs State Of Karnataka
2022 Latest Caselaw 1497 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 2ND DAY OF FEBRUARY 2022

                                BEFORE

       THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

            WRIT PETITION No.8944/2016 (LA-BDA)
BETWEEN:

1.      Sri M. Devendra
        S/o U. Munireddy
        Aged about 51 years
        R/at. 2451, 17th "E" Cross
        9th Main Road
        BSK 2nd Stage
        Bangalore-70

2.      Smt. M. Sathya Reddy
        W/o Narasimhareddy
        Aged about 53 years
        R/at. 2453, 17th "E" Cross
        9th Main Road
        BSK 2nd Stage
        Bangalore-70

3.      Sri M. Nagesh Reddy
        S/o Late U. Munireddy
        Aged about 55 years
        R/at. 2454, 17th "E" Cross
        9th Main Road
        BSK 2nd Stage
        Bangalore-70

        Petitioners 2 and 3 are represented
        by power of Attorney Holder
        Mr. Devendra S/o U. Munireddy

                                                 ...Petitioners

(By Sri Shashikiran Shetty, Senior Counsel for
 Sri Lohitaswa Banakar, Advocate)
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AND:

1.      State of Karnataka
        Urban Development Department
        Represented by its Secretary
        Bangalore-1

2.      The Commissioner
        Bangalore Development Authority
        Chowdaiah Road
        Kumara Park West
        Bangalore-20

3.      The Special Land Acquisition Officer
        Bangalore Development Authority
        Chowdaiah Road
        Kumara Park West
        Bangalore-20

                                                          ...Respondents

(By Sri A.C. Balaraj, AGA for R1;
 Sri Unnikrishnan M., Advocate for R2 and R3)

       This Writ Petition is filed under Articles 226 and 227 of the
Constitution of India, praying to:

     a) Call for the records from the respondents.
     b) Issue a writ of mandamus, directing the respondents not to
        enforce the scheme called "Banashankari 5th State" as against
        petitioners land bearing Sy.No.62 measuring 1 acre 24 guntas of
        land together with 0-6 guntas of karab of Doddkallasandra village,
        Uttarahalli Hobli, Bangalore South Taluk, in view of lapsing of
        scheme in terms of Section 27 read with Section 36 of the
        Bangalore Development Authority Act, 1976, based on the
        judgment of Hon'ble Supreme Court in offshore holdings private
        limited vs. Bangalore Development Authority, reported in (2011) 3
        SCC 139 para-127.
     c) Declare that the acquisition proceedings initiated under the
        provisions of BDA Act, 1976 for the scheme called "Banashankari
        5th State" has lapsed under Section 27 in view of the fact that
        there is no vesting of the land and land is free from acquisition.
     d) Declare that the present notification is abandoned for the reason
        that even after lapse of 32 years, no layout has been formed and
        not implemented the scheme within 5 years vide notification
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      bearing No.HUD-127 MNX -94 dated 09.05.1994 vide Annexure-D
      and notification bearing No.BDA/SLAO/1/324/1988-89 dated
      29.12.1988 vide Annexure-C
   e) To declare the acquisition proceedings have lapsed by virtue of
      section 24(2) of Right to Fair Compensation and Transparency in
      Land Acquisition, Rehabilitation and Resettlement Act, 2013
      coming into force on 2014 or in the alternative to award
      compensation in accordance with the provisions of Right to Fair
      Compensation and Transparency in Land Acquisition,
      Rehabilitation and Resettlement Act, 2013.

        This Writ Petition having been heard and reserved on 29.07.2021,
coming on for Pronouncement of Order this day, the Court made the
following:-

                               ORDER

In this petition petitioners have sought for the following

reliefs:

a) Call for the records from the respondents.

b) Issue a writ of mandamus, directing the respondents not to enforce the scheme called "Banashankari 5th State" as against petitioners land bearing Sy.No.62 measuring 1 acre 24 guntas of land together with 0-6 guntas of karab of Doddkallasandra village, Uttarahalli Hobli, Bangalore South Taluk, in view of lapsing of scheme in terms of Section 27 read with Section 36 of the Bangalore Development Authority Act, 1976, based on the judgment of Hon'ble Supreme Court in offshore holdings private limited vs. Bangalore Development Authority, reported in (2011) 3 SCC 139 para-127.

c) Declare that the acquisition proceedings initiated under the provisions of BDA Act, 1976 for the scheme called "Banashankari 5th State" has lapsed under Section 27 in

view of the fact that there is no vesting of the land and land is free from acquisition.

d) Declare that the present notification is abandoned for the reason that even after lapse of 32 years, no layout has been formed and not implemented the scheme within 5 years vide notification bearing No.HUD-127 MNX -94 dated 09.05.1994 vide Annexure-D and notification bearing No.BDA/ SLAO/1/324/1988-89 dated 29.12.1988 vide Annexure-C

e) To declare the acquisition proceedings have lapsed by virtue of section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 coming into force on 2014 or in the alternative to award compensation in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.

2. The brief facts giving rise to this petition are as

that the petitioners claim to be owners in possession of the

subject land bearing SY.No.62 measuring 1 acre 24 guntas

together with 6 guntas of kharab land situated at

Doddakallasandra village, Uttarahalli Hobli, Bangalore South

Taluk. It is contended that the land originally belonged to their

father in whose name the revenue records were standing and

upon his death, the petitioners succeeded to his estate

including the subject land. After the death of their father,

when the petitioners tried to get the revenue records

transferred to their names during September 2013, they learnt

that the subject lands had been notified for acquisition for the

BDA vide preliminary notification dated 29.12.1988 and final

notification dated 09.05.1994 for the purpose of formation of

Banashankari V Stage Layout; however, the name of the

petitioners' father was not shown in the notifications and no

notice of acquisition was served upon him or the petitioners.

3. Petitioners also learnt that their father, along with

other land owners had preferred W.P.No.21975/1994 and

connected matters before this Court challenging the

acquisition and in the said petitions, vide final order dated

27.09.1995, this Court was pleased to quash the notifications

and directed the respondents to take steps to acquire the

lands in accordance with law.

4. Subsequently, the respondents issued two more

final notifications dated 16.09.1997 and 07.10.1999 which

were challenged by petitioners and other land owners in

W.P.No.37808/1997 and connected matters. By order dated

31.08.1998, the aforesaid W.P.37808/1997 filed by the

petitioners was dismissed by this court on the ground of delay

and laches.

5. Subsequently, petitioners preferred one more writ

petition in W.P.No.58734/2013 which was also dismissed on

15.07.2015 by this Court. It is contended that despite all the

aforesaid court proceedings, the respondents have not fully,

effectively and substantially implemented and executed the

scheme for more than a period of five years and consequently

the scheme stood lapsed under Section 27 of the BDA Act. It

is also contended that the petitioners have always been in

possession and enjoyment of the subject land and the

respondents have not taken possession of the land from the

petitioners as evident from the notification dated 18.08.2009

issued under Section 16 (2) of the Land Acquisition Act, 1894

(for short the 'L.A. Act') which indicates that the subject land is

not included in the said notification. It is further contended

that by virtue of Section 24(2) of the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (for short the said

Act of 2013), the acquisition proceedings have lapsed and

deserve to be quashed on this ground also. It is therefore

contended that the impugned acquisition proceedings deserve

to be quashed.

6. The respondents 2 and 3 - BDA have filed their

statement of objections and have contested the petition inter

alia contending that having regard to the earlier round of

litigation, the present petition is barred by res judicata and that

the petitioners are guilty of suppression of material facts which

has been noticed by this Court in its order dated 15.07.2015

dismissing W.P.No.58734/2013 by imposing a cost of

Rs.20,000/- upon the petitioners. It is submitted that pursuant

to the impugned notifications, possession was taken by the

respondents on 29.12.1995 and handed over to the

Engineering Section for formation of the layout apart from the

fact that the award amount of Rs.3,61,769/- in respect of the

subject land was deposited by the respondents in LAC

No.228/1994-1995 for adjudication under Sections 30 and 31

of the L.A. Act. It is therefore contended that there is no merit

in any of the allegations and claim put forth in the present

petition which is liable to be dismissed with costs.

7. I have heard Sri Shashikiran Shetty, learned

Senior Counsel for the petitioners and Sri Unni Krishnan,

learned counsel for the BDA and perused the material on

record.

8. A perusal of the material on record will indicate

that though several contentions have been urged by both

sides in support of their respective claims, the earlier

proceedings instituted by the petitioners herein would be

relevant and germane for disposal of the present petition. In

this context, it is relevant to state that in W.P.No.37808/1997

filed by the petitioners, vide final order dated 31.08.1998, this

Court dismissed the said petition on the ground of delay and

laches; the said petition was filed by the petitioners seeking

quashing of the very same impugned acquisition notifications

in respect of the subject land; the aforesaid order passed by

this Court has attained finality and become conclusive and

binding upon the petitioners.

9. Subsequently, by suppressing the earlier rounds

of litigation including dismissal of W.P.No.37808/1997 as

stated supra, petitioners filed yet another petition in

W.P.No.58734/2013; in the said petition also, petitioners

challenged the very same impugned preliminary notification

dated 29.12.1988 and final notification dated 09.05.1994 and

acquisition proceedings pursuant thereto in respect of the

subject lands; however, in this petition in W.P.No.58734/2013,

petitioners deliberately and intentionally suppressed material

facts by not disclosing the earlier rounds of litigation and

dismissal of W.P.No.37808/1997 by this court. At the time of

hearing, the said facts having been brought to the notice of

this Court by the learned counsel for the BDA, this Court

proceeded to pass the following order:

"There is substance in the submission of Sri K.Krishna, learned counsel for respondent/Bangalore Development Authority that 1st petitioner suppressed material fact of having instituted W.P.NO.37808/1997

before this Court calling in question the very same notification, subject matter of challenge, in relation to 1 acre 30 guntas of land in Sy.No.62 of Doddakallasandra which petition was dismissed by order dated 31st August 1998 along with other connected petitions in the case of D. Hemachandra Sagar and another vs. The State of Karnataka and others.(ILR 1998 KAR 4172).

2. The factum of non disclosure and suppression of a fact in issue is borne out from records of this Court as indicated in the reported opinion which includes the case of the petitioner at paragraph 27. Nothing more need be noticed over the suppression of material facts by the 1st respondent. The acquisition of land belonging to petitioner having attained a finality by virtue of the order of this Court rejecting petitioners' claim to quash the acquisition notifications, first petitioner is guilty of suppressio veri suggestio falsi. Apparently, action of the 1st petitioner tantamount to an offence under the Indian Penal Code. It is obvious that the 1st petitioner having approached the Court by suppressing material fact, must suffer the consequences. Petition is accordingly dismissed with cost quantified at `20,000/- payable by the petitioners to the 2nd respondent/ Commissioner, Bangalore Development Authority.

I.A.No.1/2015 is dismissed as having become unnecessary."

10. A perusal of the aforesaid orders passed by this

Court will clearly indicate that this Court has come down

heavily upon the petitioners for deliberately suppressing

material facts and has come to the conclusion that the

petitioners are not entitled to any relief including the challenge

to the impugned notifications. The said order passed by this

Court in W.P.No.58734/2013 dated 15.07.2015 has also

attained finality and become conclusive and binding upon the

petitioners.

11. After having been unsuccessful in their challenge

to the impugned notifications, petitioners have once again

preferred the present petition putting forth exactly identical

grounds and contentions which are clearly barred by the

principles of res judicata, in particular, explanation No.V to

Section 11 CPC as well as by the principles of constructive res

judicata as enjoined in explanation-IV to Section 11 CPC.

When this Court has declined to entertain W.P.No.58734/2013

on the sole ground that the petitioners are guilty of

suppression of material facts, the question of entertaining the

present petition wherein the petitioners have put forth exactly

similar and identical contentions which were urged by them

earlier does not arise and consequently, I am of the

considered opinion that the petitioners are not entitled to any

relief in the present petition also.

12. The main contention urged on behalf of the

petitioners is that possession of the subject land was not taken

by the respondents 1 to 3 who had also not deposited / paid

the award amount and consequently, since the twin / two-fold

requirement contemplated in Section 24(2) of the said Act of

2013 had not been satisfied, the entire acquisition

proceedings stood lapsed. This contention urged by the

petitioners regarding lapsing of the acquisition under Section

24(2) of the said Act of 2013, is clearly misconceived and

devoid of merit in view of the well settled position of law that

the said Act of 2013, in particular, Section 24(2) is not

applicable to acquisition under the BDA Act, as held by the

Division Bench of this Court in the cases of (i) L. Rama

Reddy vs. State of Karnataka & Others -

W.A.No.1415/2016 dated 01.12.2020; (ii) BDA & Another

vs. Vishwanatha Reddy & Others - W.A.No.9476/2016

dated 02.03.2021 and (iii) BDA vs. L. Chandrashekar -

W.A.No.946/2016 dated 30.06.2021.

13. Under these circumstances, it is clear that since

Section 24(2) of the said Act of 2013 is not applicable to the

acquisition of the subject land under the BDA Act, the primary/

main contention / ground of attack to the impugned

notifications is clearly devoid of merit and the same is liable to

be rejected.

14. In view of the aforesaid discussion, I do not find

any merit in the petition and the same is hereby dismissed. All

pending applications, if any, do not survive for consideration

and the same are also disposed of.

SD/-

JUDGE swk