G S Sachidananda Murthy vs The State Of Karnataka
2022 Latest Caselaw 1509 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.36164/2017 (LA-BDA)
BETWEEN:

1.      G.S.SACHIDANANDA MURTHY
        S/O LATE G.P.SADASHIVAIAH
        AGED ABOUT 70 YEARS

        NOTE:SENIOR CITIZEN BENEFIT NOT CLAIMED

2.      G.S.DAYANANDA
        S/O LATE SADASHIVAIAH
        AGED ABOUT 63 YEARS
        NOTE:SENIOR CITIZEN BENEFIT NOT CLAIMED

3.      G.S.RENUKANANDA
        S/O LATE G.P. SADASHIVAIAH
        AGED ABOUT 66 YEARS
        NOTE:SENIOR CITIZEN BENEFIT NOT CLAIMED

        PETITIONERS 1 TO 3 ARE R/AT No.53, 50 FEET ROAD,
        HANUMANTHNAGAR, BANGALORE-19.

4.      K.V.THANDAVESWAR
        S/O VRUSHABENDRAPPA
        AGED ABOUT 73 YEARS

        MATRUSHREE #843, 15TH MAIN,
        2ND CROSS, NTI LAYOUT,
        RAJEEVGANDHINAGAR 2ND PHASE,
        BANGALORE-560097.
        NOTE:SENIOR CITIZEN BENEFIT NOT CLAIMED

5.      S.TARA W/O LATE K.V.NAGABHUSHANA
        W/O LATE K.V.NAGABHUSHANA
        AGED ABOUT 46 YEARS
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6.     MANJUSHRI N.
       D/O LATE K.V.NAGABHUSHANA
       AGED ABOUT 19 YEARS


       BOTH PETITIONERS 5 AND 6 ARE
       R/AT No.73, JOGUPALYA MAIN ROAD,
       G STREET, ULSOOR,
       BANGALORE-560 008.

                                              ...PETITIONERS


(BY SMT.DIVYA KRISHNA, ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       REPRESENTED BY ITS SECRETARY
       DEPARTMENT OF REVENUE
       VIDHANA SOUDHA
       BANGALORE-560 001.

2.     BANGALORE DEVELOPMENT AUTHORITY
       BY ITS COMMISSIONER
       BDA BUILDING, KUMARA PARK,
       BANGALORE-560 020.

3.     THE SPECIAL LAND ACQUISITION OFFICER
       BANGALORE DEVELOPMENT AUTHORITY
       BDA BUILDING, KUMARA PARK,
       BANGALORE-560 020.

4.     AGRICULTURAL PRODUCE MARKETING COMMITTEE
       REPRESENTED BY ITS CHIEF MARKETING OFFICER
       APMC YARD, YESHWANTHPUR,
       BANGALORE-560 022.
                                          ...RESPONDENTS


(BY SRI A.C.BALARAJ, AGA FOR R1;
 SRI MURUGESH V.CHARATI, ADV. FOR R2 & R3;
 SRI C.S.PATIL, ADV. FOR R4)
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      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT
THE ACQUISITION PROCEEDINGS IN RESPECT OF THE
PETITIONERS' LAND BEARING SY.NO.79 OF JARAKABANDE KAVAL,
YELAHANKA HOBLI, BANGALORE NORTH TALUK, MEASURING 4.01
ACRES IN PURSUANCE OF PRELIMINARY NOTIFICATION ISSUED
BY CHAIRMAN, CITY IMPROVEMENT TRUST BOARD BEARING
NUMBER A10/G-145/63 DATED 31.05.1963 VIDE ANNEXURE-D AND
FINAL NOTIFICATION ISSUED BY SECRETARY TO GOVERNMENT,
HEALTH AND MUNICIPAL ADMINISTRATION DEPARTMENT
BEARING NUMBER HMA/89 MNJ 71 DATED 28.10.1971 VIDE
ANNEXURE-E HAVE STOOD LAPSED AS PER SECTION 24(2) AND 25
OF THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN
LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT,
2013 AND THAT THE ACQUISITION PROCEEDINGS HAVE BEEN
ABANDONED AND THEREFORE THEY ARE NON-EST, ETC.

      THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
ON 15.07.2021, COMING ON FOR PRONOUNCEMENT OF ORDER
THIS DAY, THE COURT MADE THE FOLLOWING:-

                           ORDER

In this petition, petitioner seeks declaration that the

acquisition proceedings pursuant to the preliminary notification

dated 31.05.1963 issued by the City Improvement Trust Board

(for short 'the CITB') and the final notification dated

28.10.1971 issued by the State Government in respect of the

subject land bearing Sy.No.79 of Jarakabande Kaval,

Yelahanka Hobli, Bangalore North taluk, measuring 4.01 acres

have stood lapsed under Section 24(2)(ii) and 25 of the Right

to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 (for short 'the said

Act of 2013') have been abandoned and non est and for a

direction to the respondents to restore possession of the

subject land to the petitioners. Alternatively, petitioners have

sought for a direction to pay compensation together with all

consequential benefits to the petitioners in accordance with

the said Act of 2013.

2. Briefly stated, the contentions urged by the

petitioners are that the subject land was purchased by the

petitioners and their predecessor in title vide registered sale

deed dated 08.01.1964 and the same was converted for

industrial purpose on 07.12.1964. On 07.01.1972, the owners

filed an application with the CITB seeking permission to form a

layout and the same was approved vide CITB Resolution

bearing No.698 dated 12.01.1972, pursuant to which, the

predecessors of the petitioners executed an agreement dated

01.03.1972 in favour of the CITB. Accordingly, supervision

and layout charges levied by the CITB was paid by them and

the CITB sanctioned the layout plan on 08.01.1973. It is

contended that the petitioners have acquired right over the

subject land as detailed in paragraphs 4 and 5 of the petition.

3. The petitioners contend that though a preliminary

notification dated 31.05.1963 was purported to have been

issued by the CITB including the subject land, petitioners or

the previous owners were not aware of the same till a final

notification dated 28.10.1971 was issued showing the name of

G.B.Sadashivaiah, father of petitioners 1 to 3 against the

subject land. It is contended that the aforesaid Resolution

dated 12.01.1972 passed by the CITB, approval and sanction

of the layout plan by the CITB, registered agreement dated

01.03.1972 executed between the predecessors of the

petitioners and the CITB and other documents indicate that

the subject land had been left out / excluded from the

acquisition proceedings. It is further contended that no further

acquisition proceedings pursuant to the impugned preliminary

and final notifications have been taken by the respondents

and no notice of the same has been passed; so also, the

respondents have not passed any award in respect of the

subject land.

4. Petitioners contend that when the respondent No.4 -

APMC started interfering with their possession and enjoyment

of the subject land, petitioners were constrained to institute a

suit in O.S.No.3241/1981 for permanent injunction and other

reliefs. In the said suit, the allotees from the 4th respondent -

APMC were arrayed as defendants 1 to 15, whilst the APMC,

BDA and the State of Karnataka were arrayed as defendants

16, 17 and 18 respectively. In the said suit, the aforesaid

defendants who are also the respondents herein specifically

contended that pursuant to BDA Resolution, correspondence

etc., the BDA had acquired the subject land and taken over

possession of the same from the petitioners. It was contended

that the BDA handed over possession of the subject land to

the APMC who had allotted the same in favour of various

persons. It is also contended that on 05.05.1981, the BDA had

handed over possession to the 4th respondent APMC and a

letter in this regard dated 05.05.1981 was produced.

5. Aggrieved by the aforesaid letter dated 05.05.1981,

the petitioners herein preferred W.P.Nos.22627-628/1982

against the BDA and APMC. It was contended that at the time

of preferring this writ petition, the suit in O.S.No.3241/1981

filed by the petitioners was already pending adjudication

before the civil court. By final order dated 30.08.1982, this

Court disposed of the said petition noticing that the aforesaid

suit was already pending adjudication and that it was open for

the petitioners to file a separate suit or seek amendment in the

aforesaid suit already filed by them. The said order dated

30.08.1982 passed by the learned Single Judge was

confirmed by the Hon'ble Division Bench in

W.A.No.4223/1983 dated 20.04.1983 and also by the Apex

Court in SLP Nos.10887-10888/1983 dated 16.07.1984;

however liberty was granted in favour of the petitioners to

seek amendment by claiming declaration and possession and

that the plea of limitation would not be raised as a defence by

the respondents.

6. Petitioners have contended that after disposal of the

matter by the Apex Court, petitioners got the plaint amended

and sought for declaration and other appropriate reliefs. It is

averred in the entire proceedings right up to the Apex Court,

the respondents had not produced any material to establish

passing of an award or payment of compensation before

taking over of the possession of the subject land and handing

over the same to the 4th respondent - APMC.

7. The aforesaid suit O.S.No.3241/1981 was dismissed

by the trial court vide judgment and decree dated 07.04.2001,

aggrieved by which, petitioners preferred R.F.A.No.1648/2011

before this Court. During the pendency of the appeal,

petitioners filed an RTI application seeking copies of the entire

land acquisition proceedings including the award in relation to

the subject land. In response thereto, the BDA issued an

Endorsement enclosing a copy of the register of lands notified

and acquired etc., to indicate that the award was passed and

possession was taken on 29.01.1973 and that the entire file

had been sent to the learned senior counsel in the Supreme

Court.

8. By final judgment and decree dated 12.06.2017, this

Court disposed of the appeal reserving liberty in favour of the

petitioners to file proper application / appeal / petition by

leaving open all contentions. The said order passed by this

Court had attained finality. . It is contended that in the

absence of any material to establish that the respondents had

taken possession from the petitioners in accordance with law

and that the compensation had been paid or deposited by the

respondents, the entire acquisition proceedings are vitiated

and stood lapsed under the said Act of 2013. It is also

contended that since no award has been passed, no notice

under Section 9 of the L.A.Act 1984 has been issued and in

view of the liberty reserved by this Court in

R.F.A.No.1648/2011 referred to supra, there is no delay or

latches on the part of the petitioners to approach this Court,

particularly when the respondents have illegally taken over

possession of the subject lands from the petitioners in

violation of Article 300A of the Constitution of India.

9. It is contended that subsequently, petitioners have

submitted repeated representations seeking a direction to the

respondents to comply with the request made by the

petitioners and for payment of compensation and since the

respondents have neither replied to the same nor passed an

order nor paid any compensation, petitioners are before this

Court by way of the present petition.

10. While, the respondents 1 to 3 i.e., the State

Government and the BDA have not filed statement of

objections, the respondent No.4 - APMC has filed its

statement of objections and produced various documents. The

respondents 2 and 3 - BDA have filed a memo along with a

copy of the extract of register of lands notified, acquired etc.,

in relation to the subject land. In this context, it is relevant to

state that this extract has not only been produced by the

petitioners themselves along with their RTI application and

enclosed with I.A.2/2017 filed by them. The said extract has

also been produced as one of the documents along with

Annexure-P dated 20.02.2016 in response to the RTI

application of the petitioners.

11. In their statement of objections, the 4th respondent

- APMC have denied the various contentions and claim put

forth by the petitioners and have contended that the

petitioners have misconstrued Section 24(2) and 25 of the

said Act of 2013. It is contended that the subject land and

other lands were acquired by the CITB which was later on

converted as a BDA and the acquisition proceedings

culminated in an award and taking of possession by the BDA

which handed over possession of the same to the 4th

respondent, which was deposited the award amount as

insisted by the BDA. It is contended that having regard to the

previous round of litigation, the petitioners do not have any

locus standi to prefer the present petition nor any right to claim

the compensation amount, particularly when all the lands have

been developed, shops, go-downs, offices have been

constructed and have been allotted in favour of the respective

allotees who are running their business. It is contended that

the petition is barred by res judicata in view of the earlier

round of litigation between the petitioners and the

respondents. It is therefore contended that there is no merit in

the petition and the same is liable to be dismissed.

12. I have given my anxious consideration to the rival

submissions and perused the material on record.

13. The first question that arises for consideration is

whether the present petition is barred by res judicata as

contended by the respondents. In this context, the details of

the previous rounds of litigation as narrated above, do not

require repetition. It is however relevant to state that the

petitioners having initially asserted their possessory right and

enjoyment over the subject land, subsequently, got the plaint

in O.S.No.3241/1981 and sought for declaration and other

comprehensive reliefs. Though, the said suit was dismissed by

the trial court, in the light of the specific and express liberty

reserved in favour of the petitioners, in R.F.A.No.1648/2011

dated 12.06.2017, wherein, this Court has reserved liberty in

favour of the petitioners herein to file proper application /

appeal / petition by leaving / keeping open all contentions, it is

clear that the issues in controversy in the present petition have

not been heard and finally decided in the previous / earlier

rounds of litigation and consequently, it cannot be said that the

present petition is barred by res judicata. Under these

circumstances, the contention of the respondents that the

petition is barred by res judicata in view of the previous rounds

of litigation, cannot be accepted.

14. Insofar as delay and latches on the part of the

petitioners in approaching this Court by way of the present

petition is concerned, as stated supra, liberty was reserved by

this Court in R.F.A.No.1648/2011 on 12.06.2017 and the

present petition having been filed on 08.08.2017, within a

period of two months from that day, cannot be said to suffer

from delay or latches and as such, even this contention of the

respondents cannot be accepted.

15. A perusal of the material on record including the

previous rounds of litigation as well as the documents

produced by the petitioners themselves and the documents

produced by the 4th respondent will indicate that actual and

physical possession of the subject land have been taken over

by the BDA which is handed over the same in favour of the 4th

respondent - APMC which has in turn, allotted portions in

favour of its allotees. Under these circumstances, the question

of interfering with the impugned notifications and directing

restoration of possession to the petitioners at this length of

time would not arise in the peculiar / special facts and

circumstances of the instant case.

16. The next question that would however for

consideration is, whether the respondents have taken valid

and legal possession of the subject land from the petitioners

after following due process of law and completing the

acquisition proceedings by passing of an award as required in

law. In this context, it is relevant to state that though the trial

court in O.S.No.3241/1981 has recorded a finding that the

petitioners had not established that an award had not been

passed, the said judgment and decree passed by the trial

court stood merged and superseded by the judgment and

decree passed by this Court in R.F.A.No.1641/2017 dated

01.06.2017 referred to supra and consequently, the judgment

and decree of the trial court cannot be relied upon by the

respondents to contend that an award was passed by them.

Further, though, the respondents have contended that an

award was passed, details of the same and necessary

material particulars and documents in relation to the award

have not been furnished by the respondents. So also,

absolutely, no material has been placed by the respondent to

establish that award in respect of the subject land had been

passed by the State Government or the BDA. The only

document produced by the respondents i.e., the register of

acquired lands is also not sufficient to establish that an award

was passed by the respondents. In fact, while the RTI extract

of the register produced by the petitioners seems to indicate

that the file was handed over the learned senior counsel for

the BDA and that an award was passed and possession taken

on 29.11.1973, the very same register extract produced by the

BDA not only shows that the said Endorsement regarding

award being passed and possession being taken on

29.11.1973, has been struck off. At any rate, both the extracts

produced by the petitioners and the respondents are mutually

discrepant, contradictory and destructive and at variance with

each other and consequently, the said extracts produced by

the parties, cannot be made the basis to come to the

conclusion that an award was passed by the BDA in relation to

the subject land.

17. As stated supra, the material on record clearly

indicates that the respondents have failed to establish that an

award was passed in relation to the subject land and that the

respondents have taken possession of the subject land from

the petitioners after following due process of law and after

completing and concluding the acquisition proceedings in

accordance with law. On the other hand, though a final

notification dated 28.10.1971, no award has been proved to

have been passed pursuant to the same, even till today. In

fact, the CITB approval dated 12.01.1972 approving the layout

formed by the predecessors of the petitioners, registered

agreement dated 01.03.1972 executed between CITB and

predecessors of the petitioners, layout plan was sanctioned in

their favour dated 08.01.1973 by the CITB and other

documents clearly establish that instead of continuing the

acquisition proceedings in relation to the subject land, the

respondents have not completed or concluded the acquisition

proceedings and have recognized the right of the petitioners

over the subject land. Under these circumstances, it is clear

that the respondents having failed to complete and conclude

the acquisition proceedings, and having forcibly and illegally

dispossessed the petitioners from the subject lands, the

respondents are liable to compensate the petitioners in this

regard by taking necessary steps to acquire the subject lands

and pay compensation in favour of the petitioners as per the

provisions of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation,

Resettlement Act, 2013 together with all benefits, interest, etc.

in accordance with law in terms of the decision of the Apex

Court in the case of Vidya Devi vs. State of Himachal

Pradesh and others reported in (2020) 2 SCC 569.

18. In view of the aforesaid facts and circumstances, I

am of the view that the present petition deserves to be partly

allowed by directing the respondents to initiate appropriate

proceedings under the said Act of 2013 and pay

compensation together with all benefits, interest, etc. as stated

supra in favour of the petitioners within a stipulated timeframe.

19. In the result I pass the following:-

ORDER

(i) Petition is hereby partly allowed.

(ii) Respondents are directed to initiate acquisition

proceedings under the Right to Fair

Compensation and Transparency in Land

Acquisition, Rehabilitation, Resettlement Act,

2013 and pay compensation together with all

benefits, interest, etc. in favour of the petitioners

in relation to the subject land bearing Sy.No.79

of Jarakabande kaval, Yelahanka Hobli,

Bangalore North taluk, measuring 4.01 acres

within a period of six months from the date of

receipt of a copy of this order.

SD/-

JUDGE

Srl.