Sri. T H Devaraj vs The State Of Karnataka
2022 Latest Caselaw 2861 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF FEBRUARY 2022

                        BEFORE

     THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

       WRIT PETITION No.17013/2021(LA-BDA)

BETWEEN:

SRI. T H DEVARAJ
S/O HANUMANTHARAYAPPA
AGED ABOUT 43 YEARS
R/AT NO.61/2, PLOT NO.1, 2, 3
MARTUHI LAYOUT
LAKSHMIPURA
VIDYARANYAPURA
BENGALURU - 560 097.
                                        ...PETITIONER
(BY SRI. HANUMANTHAPPA B. HARAVI GOWDAR, ADV.
    FOR SRI. DHIRAJ A.K, ADV.(PH))

AND

1.     THE STATE OF KARNATAKA
       REP BY ITS SECRETARY TO GOVERNMENT
       URBAN DEVELOPMENT DEPARTMENT
       M S BUILDING
       BENGALURU 01.

2.     THE BENGALURU DEVELOPMENT AUTHORITY
       (REP BY ITS COMMISSIONER)
       KUMARA PARK WEST
       BENGALURU 560 020.
                           2



3.   THE SPECIAL LAND ACQUTITION OFFICER
     (DR K SHIVARAMA KARANTHA LAYOUT)
     BENGALURU DEVELOPMENT AUTHORITY
     KUMARA PARK WEST
     BENGALURU 560 020.
                                       ...RESPONDENTS
(BY SMT. KAVITHA H.C., HCGP. FOR R1(PH):
    SRI. K. KRISHNA, ADV. FOR R2 & R3(PH))

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITION OF INDIA PRAYING TO
QUASH THE FINAL NOTIFICATION DTD 30.10.2018
GAZETTED ON 01.11.2018 IN SO FAR AS THE SAME
PERTAINS TO SCHEDULE PROPERTIES, THE RELEVANT
EXTRACT OF THE FINAL NOTIFICATION VIDE ANNX-D
ISSUED FOR THE FORMATION OF DR. K. SHIVARAMA
KARANTHA LAYOUT, IN RESPECT OF SY.NO.61/1 OF
LAKSHMIPURA    VILLAGE, YESHWANTHAPURA     HOBLI,
BENGALURU NORTH TALUK AND ETC.

     THIS   WRIT   PETITION   COMING    ON   FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:

                       ORDER

Learned High Court Government Pleader is

directed to take notice for respondent No.1.

Sri K. Krishna, learned counsel is directed to

take notice for respondent Nos.2 and 3.

2. In this petition, petitioner has challenged

the impugned Preliminary Notification dated

03.11.2008 and the impugned Final Notification dated

30.10.2018 issued by respondents 2 and 3 - BDA,

insofar as it relates to the lands situated in the layout

known as "Dr.Shivaram Karanth Layout".

3. Before adverting to the rival contentions, it

is necessary to state that in the earlier round of

litigation, one Sri.T.Ashwathnarayana & Others had

challenged the preliminary notification in

W.P.No.9640/2014 & connected matters before

this Court. By order dated 26.11.2014, the learned

Single Judge of this Court quashed the aforesaid

preliminary notification by holding as under:-

"13. In that view of the matter, the notification dated: 30.12.2008 assailed in these petitions are held as having lapsed as against the lands of the petitioners referred to in each of

these petitions which were included in the said notification.

In terms of the above, these petitions are allowed to that extent. No costs".

4. The BDA filed appeals in

W.A.No.5098/2016 & connected matters before the

Division Bench. By order dated 28.04.2017, the

Hon'ble Division Bench dismissed the said appeals

holding as under:-

"The appeal is barred by limitation. The delay is of 720 days.

2. As prayed for by Mr.G.S.Kannur, learned advocates appearing for the appellants, the appeal is taken up for preliminary hearing.

3. The writ petitioner assailed a notification dated December 30, 2008, proposing to acquire the land for formation of a layout. The preliminary notification was issued on December 30, 2008. Thereafter, neither the final notification was issued nor possession was taken. Consequently, the Hon'ble single Judge held that as within the reasonable time, no further action

was taken, the proposal for acquisition got lapsed.

4. We do not find any merit in the appeal.

5. The application for condonation of delay filing the appeal is dismissed.

6. In view of the dismissal of the appeal, the pending interlocutory application does not survive for consideration and is, also, dismissed.

7. We make no order as to costs".

5. Aggrieved by the aforesaid orders passed

by this Court, the BDA preferred Civil Appeal

Nos.7661-7663/2018 & connected matters before the

Hon'ble Supreme Court. By order dated 03.08.2018,

the Hon'ble Supreme Court allowed the said appeals,

restored the acquisition proceedings and directed the

BDA to issue the Final Notification within a period of

three months from the date of passing of the order. In

the said order reported in (2018) 12 SCC 122 , the

Apex Court held as under:-

"17. It is apparent from the fact that the Single Judge has relied upon the decision in H.N. Shivanna [H.N. Shivanna v. State of Karnataka, 2012 SCC OnLine Kar 8956 : (2013) 4 KCCR 2793] in which it was observed by the Division Bench that scheme was to be completed in 2 years otherwise it would lapse. It was precisely the question of time period which was dwelt upon and what was ultimately decided by this Court in Offshore Holdings [Offshore Holdings (P) Ltd. v. BDA, (2011) 3 SCC 139 : (2011) 1 SCC (Civ) 662] has been blatantly violated by the Single Judge and that too in flagrant violation of the provisions and intendment of the Act.

18. It is also apparent from the facts and circumstances of the case that there were a large number of irregularities in the course of an inquiry under Section 18(1) of the BDA Act. The Government had nothing to do with respect to the release of the land at this stage, as the stage of final notification had not reached but still the landowners in connivance with the influential persons, political or otherwise, managed the directions in respect of 251 acres of the land and the Special Land Acquisition Collector also considered exclusion of 498 acres of the land

against which the question was raised in the Assembly and eyebrows were raised in public domain. Two inquiries were ordered on 24-11- 2012 and 19-1-2013 by the State Government and based upon that inquiry, it was ordered and a public notice was issued on 3-5-2014 that the BDA will consider the entire matter afresh

19. In the aforesaid backdrop of the facts, the writ petitions came to be filed, it would not be termed to be the bona fide litigation, but was initiated having failed in attempt to get the land illegally excluded at the hands of the Special Land Acquisition Collector and the State Government and after the inquiries held in the matter and the notice was issued to start the proceedings afresh. At this stage, the writ petitions were filed. In the aforesaid circumstances, it was not at all open to the High Court to quash the preliminary notification issued under Section 17, as the landowners, the State Government and BDA were responsible to create a mess in the way of planned development of Bangalore City.

20. The scheme which was framed was so much benevolent scheme that 40% of the 55% of the land reserved for the residential purpose was to

be given to the landowners at their choice and they were also given the choice to obtain the compensation, if they so desired, under the provisions of the LA Act. Thus, it was such a scheme that there was no scope for any exclusion of the land in the ultimate final notification.

21. It is apparent from the circumstances that the matter cannot be left at the mercy of unscrupulous authority of the BDA, the State Government or in the political hands. Considering the proper development and planned development of Bangalore City, let the Government issue a final notification with respect to the land which has been notified in the initial notification and there is no question of leaving out of the land in the instant case as option has been given to landowners to claim the land or to claim the compensation under the relevant LA Act which may be applicable in the case.

 22.    It   was         contended           on     behalf     of    the
landowners       that      certain       developments               have
taken    place       after    the       orders        were      passed

regarding exclusion of the land and when Section 27 provides a limitation of five years after final notification, in case development was not

undertaken within five years, even the final scheme would lapse. Thus, the principle enunciated in Section 27 should be followed by this Court with respect to the lapse of preliminary notification as well. We find that there is a vast difference in the provisions and action to be taken pursuant to the preliminary notification and the final notification under Section 19. In the instant case, the facts indicated that it was in the interest of the public, landowners, BDA and the State Government. The scheme had prior approval of the State Government however at the cost of public interest yet another scheme was sought to be frustrated by powerful unforeseen hands and the issuance of final notification had been delayed. Three inquiries were ordered, two by the State Government and one by the BDA as the release of the land was being proposed in an illegal manner. Hue and cry has been raised about their illegalities in the Assembly as well as in the public. Thus, for the delay, owners cannot escape the liability, they cannot take the advantage of their own wrong having acted in collusion with the authorities. Thus, we are of the considered opinion that in the facts of the case

the time consumed would not adversely affect the ultimate development of Bangalore City.

23. The authorities are supposed to carry out the statutory mandate and cannot be permitted to act against the public interest and planned development of Bangalore City which was envisaged as a statutory mandate under the BDA Act. The State Government, as well as the authorities under the BDA Act, are supposed to cater to the need of the planned development which is a mandate enjoined upon them and also binding on them. They have to necessarily carry it forward and no dereliction of duty can be an escape route so as to avoid fulfilment of the obligation enjoined upon them. The courts are not powerless to frown upon such an action and proper development cannot be deterred by continuing inaction. As the proper development of such metropolitan is of immense importance, the public purpose for which the primary notification was issued was in order to provide civic amenities like laying down roads, etc. which cannot be left at the whim or mercy of the authorities concerned. They were bound to act in furtherance thereof. There was a clear embargo placed while issuing the notification not to create

any charge, mortgage, assign, issue or revise any improvement and after inquiry, it was clear that the notice had been issued in May 2014, thus, no development could have been made legally. Notification dated 3-5-2014 was issued that re-inquiry was necessary in the matter. The development made, if any, would be at the peril of the owners and it has to give way to larger welfare schemes and the individual interest and cannot come in the way of the larger public interest. The acquisition was for the proper and planned development that was an absolute necessity for the city of Bangalore.

24. In the circumstances, we have no hesitation in condoning the delay. Though, it is apparent that the authorities had come with certain delay, in certain matters and the writ appeals were also filed belatedly with the delay in the High Court, however, considering the provisions of the scheme and the method and manner, wrong has been committed, it has compelled us not only to condone the delay but also to act in the matter so as to preserve the sanctity of the legal process and decision of this Court in Offshore Holdings [Offshore Holdings (P) Ltd. v. BDA, (2011) 3 SCC 139 : (2011) 1 SCC (Civ) 662] .

25. We, therefore, direct the State Government as well as the BDA to proceed further to issue final notification without any further delay in the light of the observations made in the order. The impugned orders passed by the Single Judge and the Division Bench are hereby quashed and set aside. The scheme and notification under Section 17 of the BDA Act are hereby upheld with the aforesaid directions.

26. As noticed above, the Land Acquisition Officer proposed exclusion of 251 acres of land from acquisition on being asked by the Government after the preliminary notification was issued. The Land Acquisition Officer, has considered another 498 acres of land to be excluded from being acquired. In connection to this, several questions were raised in the Karnataka Legislative Assembly, as a result of which two inquiries were ordered by the State Government i.e. on 24-11-2012 and 19-1-2013. However, result of the inquiry is not forthcoming. Further, it appears that the exclusion of the lands from acquisition was proposed in connivance with influential persons; political or otherwise. We are of the view that the BDA and the State Government have to proceed with the

acquisition of these lands. We are also of the view that it is just and proper to hold an inquiry for fixing the responsibility on the officials of the BDA and the State Government for trying to exclude these lands from acquisition.

27. Therefore, we appoint Hon'ble Mr Justice K.N. Keshavanarayana, former Judge of the Karnataka High Court as the inquiry officer for fixing the responsibility on the officials of the BDA and the State Government who were responsible for the aforesaid. The Commissioner, BDA is hereby directed to consult the inquiry officer and pay his remuneration. Further, we direct BDA to provide appropriate secretarial assistance and logistical support to the inquiry officer for holding the inquiry. In addition, we authorise the inquiry officer to appoint requisite staff on temporary basis to assist him in the inquiry and to fix their salaries. Further, the BDA is directed to pay their salaries. The State Government and the BDA are directed to produce the files/documents in relation to the aforesaid lands before the inquiry officer within a period of four weeks from today. We request the inquiry officer to submit his report to this Court as expeditiously as possible.

28. The State Government and the BDA are further directed to proceed with the acquisition of the aforementioned lands without excluding land from acquisition and submit a report to this Court the steps taken by them in this regard within a period of three months from today.

29. In addition, it was submitted at the Bar that several cases where similar orders of exclusion in relation to lands notified for acquisitions for the formation of "Dr K. Shivarama Karantha Layout" have been passed by the High Court and that BDA has failed to challenge those orders in connivance with the landowners and influential persons. We hereby direct the BDA to challenge all such orders/seek review of the said orders in accordance with law within a period of three months from today.

30. The appeals are disposed of in the aforesaid terms leaving the parties to bear their own costs".

6. The material on record indicates that it is

not in dispute that subsequently, the BDA has issued

the aforesaid final notification dated 30.10.2018. As

noticed above, the present petition filed after disposal

of the aforesaid appeals by the Apex Court has

assailed both the preliminary notification and final

notification.

7. Subsequently, while considering the

Miscellaneous Application Nos.1614-1616/2019 filed in

the aforesaid Civil Appeals, the Apex Court passed the

order dated 03.12.2020. The said order passed by

the Apex Court reads as under:-

"2. During the course of hearing, it is pointed out that after quashing of the preliminary notification by the High Court and before setting aside of the said order by this Court, several constructions have been put up either by the land owners or purchasers of the sites from the land -

owners. It is submitted that these constructions are mainly dwelling houses. In this factual background, we are of the considered opinion that some protection against demolition of dwelling houses may be justified. Further the layout is meant for residential sites and this object of formation of layout would not be frustrated by saving lawfully

constructed dwelling houses belonging to poor and middle income groups.

3. Judgment dated 03.08.2018, inter alia, observes that 45% of the land covered under the scheme was to be utilised for the civic amenities like play grounds, road etc. and residential sites would be formed by utilising remaining 55% of the land covered under the scheme. It is also clear that out the said 55% of developed residential area, 40 % of 55% will be offered as compensation to the land -owners as specified in the scheme and remaining 60 % of 55 % will be the share of the Bangalore Development Authority (BDA). The land owners would be given option to accept the developed eligible residential land or opt for compensations as per the Land Acquisition Act, 1894 (for short, ' the LA Act').

4. Needless to state that the acquisition of the land under the BDA Act is regulated by the provisions of he LA Act so far as they are applicable. (See: Section 36 of the BDA Act). The borrowed provisions of LA Act, become an integral part of the BDA Act and are totally unaffected by the repeal of the LA Act. In other words, the provisions of the LA Act are incorporated into the BDA Act so far as they are applicable. Of course,

the bar contained in Sections 6 and 11-A of the LA Act, are not applicable to the BDA Act. We have discussed this aspect of the matter in our main judgment dated: 03.08.2018. It is also clear that the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013 are not applicable for the acquisition made under the BDA Act. Final notification has also been issued after the pronouncement of judgment by this Court in Civil Appeal No(s). 7661-7663 of 2018 dated: 03.08.2018. We direct the BDA to proceed with the acquisition of the lands as proposed in the notification.

5. If the land - owner who has put up the construction opts for land by way of developed plot in lieu of compensation, the constructed portion would be adjusted in the land that would be adjusted in the land that would be allotted in his favour. It if also clarified that the persons who have put up construction/dwelling house are not entitled for compensation in respect of the portion of the land. If the incentive scheme as per Bangalore Development Authority (Incentive Scheme for Voluntary Surrender of Land )Rules, 1989, is applied , the constructed portion can also be

adjusted towards incentive site for voluntary surrender of land. However, where a person has constructed a dwelling house or any other building and where the constructed portion is not adjusted for any reason, betterment charges could be levied on him under Section 20 of the BDA Act. BDA is directed to integrate the said constructions into the layout.

6. As stated above, the building constructed in the layout with valid sanction/ permission from the competent authority/authority(ies) needs to be saved from demolition. Therefore, it is important to identify the lawful constructions made in the notified lands. For this purpose, we appoint a Committee comprising of Hon'ble Mr.Justice A.V.Chandrashekhar, former Judge of the Karnataka High Court, as its Chairman, Mr.Jayakar Jerome, former Commissioner of the BDA and Mr.S.T.Ramesh, former Director General of Police, as its members. The Committee is required to look into each of the requests of the owners of the dwelling houses/buildings have been constructed in accordance with the sanction / permission of the competent authorities. The Constructions which have come up after the date of pronouncement of

the judgment by this Court i.e., 03.08.2018, shall not be eligible for regulations. The Committee is permitted to devise its own mechanism/procedure for holding the enquiry including issuing notices in the local newspapers in this regard. Final orders regarding dwelling houses/buildings which will be protected, would be passed after we receive the report of the committee.

7. To ensure that in the interregnum and from now onwards no further constructions come up, the Commissioner, BDA, would undertake exercise for satellite imaging of the area in question for identifying and noting the construction as they exist. The said exercise would be undertaken within a period of three days from the date of receipt of a copy of this order. This exercise would be repeated periodically every month and in case any new constructions are noticed, they would be brought to the notice of the committee and action, including demolition etc., would be undertaken.

8. The Commissioner of the BDA is hereby directed to consult the Chairman and its Members of the Committee and accordingly fix and pay their remunerations. We direct the BDA to provide appropriate secretarial assistance, transport and

other logistical support to the Chairman and the members of the Committee for holding an enquiry within two weeks from today. We authorise the Chairman of the Committee to appoint requisite staff, if needed, on a temporary basis to assist the Committee in conducting enquiry and fix their salaries which would be paid by the BDA. The BDA is also directed to provide enough office space in its headquarters for the smooth functioning of the Committee within two weeks. The Committee is also permitted to take assistance of any of the employees including surveyors from the BDA or of the State Government for the purpose of spot inspection, measurement and for its overall functioning .

9. We make it clear that there is no bar for the Chairman or the members of the Committee to accept any other engagement/arbitration matters during the subsistence of the Committee.

10. The Committee is requested to submit its report before this Court Preferably within a period of six months from today.

11. It appears that certain writ petitions are pending before the Karnataka High Court Challenging the final notification for acquisition of lands for the formation of Dr. Shviarama Karantha

Layout. BDA is directed to furnish the list of pending cases in respect of the said layout to the Registrar General of the High Court within a week from today. We request the Registrar General to list them before the Court within two weeks. We request the High Court to dispose of the said cases on their merits expeditiously.

12. The State Government is directed to grant approval to the 60:40 scheme in respect of the layout in question, if necessary, within two weeks from today. The State Government is also directed to depute additionally six Land Acquisition Officers to the BDA within two weeks from today.

13. BDA to file status report on or before 11.01.2021.

14. List these cases on 19.01.2021".

8. A perusal of paragraphs 5, 6 and 7 of the

said order dated 03.12.2020 passed by the Apex

Court will indicate that the Committee, in addition to

dealing with the other aspects as directed by the Apex

Court, was also directed to submit a report with

regard to the constructions put up by various persons

in the said Layout.

9. Sri Hanumanthappa B. Haravi Gowdar,

learned counsel appearing on behalf of Sri Dhiraj A.

K., learned counsel, for the petitioner as well as

Sri K. Krishna, learned counsel appearing for

respondent Nos.2 and 3 / BDA have submitted that

pursuant to the aforesaid order dated 03.12.2020, the

Committee constituted by the Apex Court has taken

up the matter as directed in the order and the

Committee work is in progress.

10. A perusal of the facts and grounds urged in

the memorandum of writ petition will indicate that

apart from various other facts and grounds urged in

the same, it is one of the specific contentions of the

petitioner that he has put up constructions on the

subject property. Further, learned counsel for both

sides submit that in view of the aforesaid facts and

circumstances and without prejudice to the rights and

contentions of the parties, the petitioner may be

relegated to the aforesaid Committee constituted by

the Hon'ble Supreme Court in the aforesaid order

dated 03.12.2020 to ventilate his grievance. Under

these circumstances, without expressing any opinion

on the merits / demerits of any of the rival

contentions urged by the parties and without

prejudice to any of his rights and contentions, I deem

it just and proper to dispose of this petition, relegating

the petitioner to approach the aforesaid Committee

constituted by the Apex Court in its order dated

03.12.2020 and ventilate his grievance before the said

Committee.

11. In the result, I pass the following:-

ORDER

(i) Petition is disposed of.

(ii) The petitioner is reserved liberty to approach

the Committee constituted by the Hon'ble Supreme

Court in its order dated 03.12.2020 passed on

Misc.Application Nos.1614-1616/2019 in Civil (Appeal)

Nos.7661/7663/2018.

(iii) Liberty is reserved in favour of the petitioner

to file pleadings and documents before the said

Committee and also engage the services of a Counsel

to represent him before the said Committee.

(iv) Since several other contentions are urged by

both sides including the legality and validity of the

impugned Notifications which are also questioned in

the present petition, having regard to the submissions

made at the bar coupled with the liberty reserved in

favour of the petitioner to approach the Committee as

stated supra, no opinion is expressed on the merits /

demerits of any of the rival contentions and all rights

and contentions of the parties are kept open and

liberty is reserved in favour of the petitioner to pursue

such legal remedies as available in law in respect of

any of his grievance and contentions.

Subject to the aforesaid directions, petition is

disposed of.

No costs.

Sd/-

JUDGE

HA/-