Sri M Shashidhar vs The Principal Secretary
2022 Latest Caselaw 3382 Kant

                                1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF FEBRUARY 2022

                         PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

     THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

              W.A. No.1400 OF 2021 (LA-BDA)
                            IN
              W.P.No.3495 OF 2021 (LA-BDA)

BETWEEN:

SRI. M. SHASHIDHAR
S/O LATE C. MUNIRAJU
AGED ABOUT 42 YEARS
R/AT RAMAGONDANAHALLI VILLAGE
CHIKKANAYKANAHALLI
YELAHANKA HOBLI
BANGALORE NORTH TALUK
BANGALORE DISTRICT - 560064.
                                           ... APPELLANT


(BY MR. LEELADHAR H.P. ADV.,)

AND:


1.    THE PRINCIPAL SECRETARY
      GOVERNMENT OF KARNATAKA
      DEPT OF URBAN DEVELOPMENT
      M S BUILDINGS, DR. AMBEDKAR VEEDHI
      BENGALURU - 560001.

2.    THE COMMISSIONER
      BENGALURU DEVELOPMENT AUTHORITY
                               2



     KUMARA PARK WEST
     BENGALURU - 560020.

3.   THE LAND ACQUISITION OFFICER
     BENGALURU DEVELOPMENT AUTHORITY
     KUMARA PARK WEST
     BENGALURU - 560020.

                                            ... RESPONDENTS

(BY MRS. VANI H, AGA)

                             ---


      THIS W.A. IS FILED UNDER SECTION 4 OF THE KARNATAKA

HIGH COURT ACT, PRAYING TO CALL FOR THE ENTIRE RECORDS

IN W.P.NO.3495/2021 ALONG WITH OTHER WRIT PETITIONS ON

THE FILE OF THIS HON'BLE COURT AND SET ASIDE THE ORDER

DATED 29.1.2021 PASSED BY THE LEARNED SINGLE JUDGE IN

W.P. NO.3495/2021 AND FURTHER BE PLEASED TO ALLOW THE

SAID WRIT PETITION AND GRANT SUCH OTHER RELIEFS.           PASS

ANY OTHER RELIEF / RELIEFS AS THE HON'BLE DEEMS FIT UNDER

THE FACTS AND CIRCUMSTANCES OF THE CASE INCLUDING THE

COST OF THE APPEAL.


      THIS   W.A.   COMING   ON    FOR   HEARING,   THIS   DAY,

ALOK ARADHE J., DELIVERED THE FOLLOWING:
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                         JUDGMENT

In this intra court appeal, the appellant has assailed

the validity of the order dated 19.11.2021 passed by the

learned Single Judge by which the writ petition viz.,

W.P.No.3945/21 preferred by the appellant, which was

decided along with connected matters has been dismissed.

2. Facts giving rise to filing of this petition in nutshell

are that as per the appellant, the land measuring Sy.No.10/3

measuring 3 acres and 32 guntas including 7 guntas of

kharab land is the ancestral property belonging one Chikka

Byrappa which was thereafter, inherited by the appellant's

father. Whereas, the land bearing Sy.No.57/1A measuring 26

guntas belongs to the appellant who is in cultivating

possession of the land. It is the case of the appellant that

appellant has planted trees on the land in question. A

preliminary notification under Section 17(1) of the Bangalore

Development Authority Act, 1976 was issued on 30.12.2008

for acquisition of the land in question along with several

other lands for formation of Dr.K.Shivaram Karanth Layout.

The appellant filed an objection to the aforesaid notification.

Thereafter, the father of the appellant filed a writ petition

viz., W.P.No.23599/2015 which was allowed by a bench of

this court by an order dated 06.11.2015 and preliminary

notification issued by the authority was quashed. The

appellant, thereafter, made a representation on 16.01.2016

to the Commissioner, Bangalore Development Authority to

issue No Objection Certificate to the appellant. However, the

aforesaid representation failed to evoke any response.

Thereafter, the appellant filed a writ petition viz.,

W.P.No.132/2017 seeking the relief of issuance of No

Objection Certificate. The aforesaid writ petition was

disposed of on 18.04.2017 with a direction to the Respondent

No.2 herein to decide the representation submitted to it by

the appellant.

3. In the meanwhile, the issue with regard to validity of

the preliminary notification was adjudicated by the Supreme

Court vide judgment dated 03.08.2018 passed in SLP ©

No.7661-63/20187 connected with SLP © No.10216-

10218/2018 as well as SLP © No.10283/2018 wherein the

appellant was a respondent. The Supreme Court, upheld the

validity of the preliminary notification dated 30.12.2008 as

well as the scheme prepared by the Bangalore Development

Authority in respect of the entire land measuring 3546 acres

and 12 guntas, which includes the land of the appellant. The

Supreme Court further, directed the State Government and

the Bangalore Development Authority to issue final

notification under Section 19 of the Act without excluding any

portion of the land from acquisition from coming to definite

conclusion that there is no scope for exclusion of in the

ultimate final notification. In pursuance of the direction

issued by the Supreme Court in the aforesaid case, the

Authority has issued the final notification dated 01.11.2018,

which included the land of the appellant as well.

4. The appellant assailed the validity of the aforesaid

notification in a writ petition before the learned Single Judge.

The learned Single Judge vide common order passed in

W.P.No.3495/2021 along with connected writ petitions has

dismissed writ petition, inter alia, on the ground that since

the validity of the preliminary notification as well as the

scheme has already been upheld, the grounds pertaining to

the challenge to the aforesaid preliminary and final

notifications as well as the validity of the scheme cannot be

permitted to be urged. In the aforesaid factual background,

this appeal has been filed.

5. Learned counsel for the petitioner submitted that the

land in question are hypothetical lands and therefore, in view

of decision of the supreme court in BHONDURAM SWAMY

VS. BANGALORE DEVELOPMENT AUTHOIRTY', (2010) 7

SCC 129 observed to be excluded from the purview of the

notification issued under Section 17(1) and 19 of the

Bangalore Development Authority Act, 1976. It is also urged

that the surrounding lands have not been acquired by the

Authority.

6. We have considered the submission made by learned

counsel for the appellant and perused the record.

Admittedly, the Supreme Court has not only upheld the

validity of the preliminary notification but also the scheme

framed by Bangalore Development Authority in respect of the

entire land measuring 3546 acres and 12 guntas, which

includes the land pertaining to the appellant. From the order

of the Apex Court dated 03.08.2018 passed in the aforesaid

Special Leave Petitions. It is evident that the Apex Court has

directed issuance of final notification in respect of entire

extent of land notified under the preliminary notification

without excluding any portion of land from final notification.

The claim of the appellant for releasing the his land from the

purview of the notification issued under Section 17(1) and

19(1) of the Act on the ground that same is a hypothecated

land in view of the fact that the surrounding land has not

been acquired cannot be entertained in the present

proceedings. The learned Single Judge in our considered

opinion has rightly refused to entertain the writ petition.

For the aforementioned reasons, we do not find any

merit in this appeal. The same fails and is hereby dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

SS