Karnataka High Court

The Bangalore Development ... vs The State Of Karnataka on 20 June, 2022

Bench: Alok Aradhe, J.M.Khazi

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 20TH DAY OF JUNE 2022

                          PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

           THE HON'BLE MS.JUSTICE J.M. KHAZI

             W.A. NO.4122 OF 2017 (LA-BDA)
                          IN
              W.P.No.901 OF 2016 (LA-BDA)

BETWEEN:

1.     THE BANGALORE DEVELOPMENT AUTHORITY
       T. CHOUDAIAH ROAD
       KUMARA PARK WEST
       BANGALORE 560020
       REPTD BY ITS COMMISSIONER.

2.     THE ADDITIONAL LAND ACQUISITION OFFICER
       BANGALORE DEVELOPMENT AUTHORITY
       T. CHOUDAIAH ROAD
       KUMARA PARK WEST
       BANGALORE 560020

       APPELLANTS 1 AND 2 ARE BEING THE
       DIFFERENT SECTION OF THE SAME
       AUTHORITY BOTH ARE REP. BY ALAO.


                                          ... APPELLANTS

(BY MR. D.N. NANJUNDA REDDY, SR. COUNSEL FOR
    MR. GOWTHAMDEV C. ULLAL, ADV.,)
                               2



AND:

1.   THE STATE OF KARNATAKA
     BY ITS SECRETARY
     DEPARTMENT OF URBAN DEVELOPMENT
     M S BUILDINGS
     BANGALORE 560001.

2.   K. MUNIRAJA
     S/O LATE M. KRISHNAPPA
     @ MEKALA KRISHNAPPA
     AGED ABOUT 52 YEARS.

3.   K. CHANDRASHEKAR
     S/O LATE M. KRISHNAPPA
     @ MEKALA KRISHNAPPA
     AGED ABOUT 46 YEARS.

4.   K. LOKESH
     S/O LATE M. KRISHNAPPA
     @ MEKALA KRISHNAPPA
     AGED ABOUT 44 YEARS.

5.   HEMANTH KUMAR K
     S/O LATE M. KRISHNAPPA
     @ MEKALA KRISHNAPPA
     AGED ABOUT 38 YEARS.

6.   ROOPA K
     D/O LATE M. KRISHNAPPA
     @ MEKALA KRISHNAPPA
     AGED ABOUT 33 YEARS.

7.   VEENA
     W/O LATE K. SRINIVAS
     AGED ABOUT 44 YEARS.

     ALL ARE RESIDING AT
     KRISHNAPPA LAYOUT
     BBMP WARD NO.27
     BANASVADI VILLAGE
     MS NAGAR POST , BANGALORE -33.
                                       ... RESPONDENTS
                             3




(BY MR. S. RAJASHEKAR, AGA FOR R1
    MR. UDAYA HOLLA, SR. COUNSEL FOR
    MR. R.B. SANGAMESH, ADV., FOR R2-R7)
                            ---

      THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED
31/3/2016 PASSED IN THE WRIT PETITION 901/2016.

     THIS W.A. COMING ON FOR FURTHER HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                       JUDGMENT

This intra court appeal has been filed against

order dated 31.03.2016 by which writ petition

preferred by respondents (hereinafter referred to

as 'the owners' for short) has been allowed and the

proceeding initiated by the Bangalore Development

Authority (hereinafter referred to as 'the authority'

for short) for acquisition of land in question under

Bangalore Development Authority Act, 1976

(hereinafter referred to as 'the Act' for short) have

been quashed.

2. Facts giving rise to filing of this appeal

briefly stated are that one late Sri.M.Krishnappa

was the original owner of land bearing

Sy.No.225/1 measuring 2.25 acres of Banasawadi

Village, K.R.Pura, Hobli, Bangalore (hereinafter

referred to as 'the land in question' for short). The

authority issued a preliminary notification dated

03.11.1977 under Section 17 of the Act for

acquisition of the aforesaid land for Banasawadi

Scheme between old madras Road and

Banasawadi Road (hereinafter referred to as 'the

OMBR Layout' for short). Thereafter, a final

notification dated 13.11.1980 under Section 19 of

the Act was issued. An award was passed on

06.10.1982 and the possession of the land in

question was taken by preparing a panchanama

on 22.10.1982.

3. The original owner of the land viz.,

M.Krishnappa filed a writ petition viz.,

W.P.No.41625/1982, in which challenge was made

to the proceeding for acquisition. On 25.07.1983,

a notification under Section 16(2) of the Land

Acquisition Act was issued stating that the

possession of the land in question has already

been taken. The aforesaid writ petition filed by

late M.Krishnappa was dismissed for non

prosecution on 31.01.1982.

4. Thereafter, sons of M.Krishnappa viz.,

Sri.K.Muniraju and Sri.K.Srinivasa filed another

writ petition on 16.02.1995 in which prayer for

regularization of one of the house situate on the

land in question was made. In the said writ

petition, there was neither any mention of

previous writ petition viz., W.P.No.4751/1995

which was dismissed for non prosecution nor the

proceeding under the Land Acquisition Act were

challenged. The said writ petition was dismissed

by an order dated 27.03.1997 and it was inter alia

held that the petitioners of the said writ petition

cannot seek regularization with regard to

unauthorized structure on the land in question. It

was further held that petitioners in the said writ

petition cannot, seek regularization in respect of

land measuring 2 acres and 21 guntas, on the

ground that there is a small unauthorized

structure on the land in question. The writ

petition was accordingly dismissed.

5. Thereafter, on 16.01.2016, sons of Late

M.Krishnappa and his daughter in law after a

period of 34 years from the date of passing of the

award filed the writ petition viz.,

W.P.No.916/2016. In the writ petition, a prayer

was sought that preliminary notification dated

03.11.1977 and final notification dated

13.11.1980 issued under Section 17 and 19 of the

Act respectively issued for formation of OMBR

Layout have lapsed under Section 27 of the Act.

The petitioner also sought a declaration that

preliminary as well as final notifications dated

03.11.1977 and 13.11.1980 for formation of

OMBR Layout have lapsed under Section 24(2) of

the Right to Fair Compensation and Transparency

in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 (hereinafter referred to as

'the 2013 Act' for short). The learned Single Judge

by an order dated 31.03.2016 inter alia held that

physical possession of the land in question has

not been taken. Therefore, the rigor of Section

24(2) of the 2013 Act would apply and the

proceeding for acquisition insofar as it pertains to

land held by the owners was quashed and the writ

petition was allowed. In the aforesaid factual

background, the Authority has filed this appeal.

6. Learned Senior counsel for the appellant

submitted that Section 24(2) of 2013 Act does not

apply to the proceeding initiated under the Act. It

is submitted that the learned Single Judge ought

to have appreciated that the writ petition suffered

from inordinate delay and laches. It is also

submitted that learned Single Judge ought to have

appreciated that the owners had not approached

the court with clean hands and had suppressed

the factum of filing of the earlier writ petitions. It

is also pointed out that essential ingredients to

attract the applicability of Section 27 of the Act

were not pleaded and in any case, the scheme

cannot lapse to the extent of land held by the

owners only. It is argued that even if the scheme

lapses, the acquisition may not lapse. It is further

submitted that two structures were raised on the

land in question subsequently. It is also argued

that the owners if so advised, may approach the

Authority for allotment of the sites on which

structures are situate and in case such an

application is made, the authority shall decide the

same under Section 38-D of the Act. In support of

aforesaid submissions, reliance has been placed

on decisions in 'INDORE DEVELOPMENT

AUTHOIRTY VS. MANOHARLAL AND OTHERS',

(2020) 8 SCC 129, ' BANGALORE

DEVELOPMENT AUTHORITY AND ANOTHER VS.

STATE OF KARNATAKA AND ANOTHER', (2018)

9 SCC 122, BANGALORE DEVELOPMENT

AUTHOIRTY VS. DR.H.S.HANUMANTHAPPA', ILR

1996 KAR 642, 'KRISHNAMURTHY VS.

BANGALORE DEVELOPMENT AUTHOIRTY', ILR

1996 KAR 1258, 'SULOCHANA CHANDRAKANT

GALANDE VS. PUNE MUNICIPAL TRANSPORT

AND OTHERS', (2010) 8 SCC 467, 'NORTHERN

INDIAN GLASS INDUSTRIES VS. JASWANT

SINGH AND OTHERS', (2003) 1 SCC 335,

'BANGALORE DEVELOPMENT AUTHORITY AND

ANR. VS. SMT.VANAJA MUNIREDDY AND

OTHERS', W.A.NO.3487/2016, 'K.JAYARAM &

ORS. VS. BANGALORE DEVELOPMENT

AUTHORITY & ORS.', CIVIL APPEAL Nos.7550-

7553/2021, 'SMT.K.S.MENAKSHI AND OTHERS

VS. STATE OF KARNATAKA AND OTHERS',

W.A.NO.1274/2018,'FULJIT KAUR VS. STATE

OF PUNJAB', (2010) 11 SCC 455, 'BANGALORE

DEVELOPMENT AUTHOIRTY & ANR. VS. THE

STATE OF KARNATAKA & ORS.', CIVIL APPEAL

NOS.7661-7663/2018, 'BANDA DEVELOPMENT

AUTHORITY, BANDA VS. MOTI LAL AGARWAL

AND OTHERS', (2011) 5 SCC 394, 'BEHARI

KUNJ SAHKARI AVAS SAMITI VS. STATE OF

UTTAR PRADESH AND OTHERS', (2008) 12 SCC

306.

7. On the other hand, learned Senior

counsel for the owners has submitted that in the

statement of objections, the Authority has not

pleaded that the owners have suppressed any

material fact. It is also submitted that suppression

must be of material fact. It is contended that

orders passed in the earlier writ petition are not

relevant. While inviting the attention of this court

to the mahazar drawn on 22.10.1982, it is

contended that names and addresses of the

witnesses have not been mentioned therein and in

fact, possession of the land in question has not

been taken from the owners and they are in

possession of the land in question for past 35

years. It is also pointed out that layout has not

been formed as is evident from the information

dated 18.09.2015 supplied to the owners under

the Right to Information Act. Learned Senior

counsel has referred to the photographs to

contend that houses are situate on the land in

question. It is also stated that 35 acres of land

belonging to the owners has been acquired. It is

urged that notification issued under Section 16(2)

of the 1984 Act is not conclusive and the

presumption attached to the notification issued

under Section 16(2) of the Act is a rebuttable

presumption. In support of aforesaid submissions,

reliance has been placed on decisions in

'MRS.POORNIMA GIRISH VS. REVENUE

DEPARTMENT, GOVERNMENT OF KARNATAKA

AND OTHERS'., ILR 2011 KAR 575, ' THE

COMMISSIONER AND ANR. VS. MRS.POORNIMA

GIRISH AND ANR.', W.A.NO.4824/2010,

SRI.R.ADIKESAVULU NAIDU AND OTHERS VS.

THE STATE OF KAR. BY ITS SECRETARY,

U.D.D. AND OTHERS', ILR 2011 KAR 3657,

P.K.KALBURQI VS. STATE OF KARNATAKA AND

OTHERS', (2005) 12 SCC 489, (2005) 12 SCC

489, MUNIYAMMA VS. STATE OF KARNATAKA

AND OTHERS', 2007(5) KAR.L.J. 11, 'BALWANT

NARAYAN BHAGDE VS. M.D.BHAGWAT AND

OTHERS', (1976) 1 SCC 700, 'BANDA

DEVELOPMENT AUTHORITY, BANDA VS.MOTI

LAL AGARWAL AND OTHERS', (2011) 5 SCC

394, 'RAGHBIR SINGH SEHRAWAT VS. STATE

OF HARYANA AND OTHERS', (2012) 1 SCC 792,

'DR.A.PARTHASARTHY AND OTHERS VS.

STATE OF KARNATAKA , BY ITS PRINCIPAL

SECRETARY, URBAN DEVELOPMENT

DEPARTMENT AND OTHERS', ILR 2017 KAR

3489, 'S.J.S BUSINESS ENTERPRISES (P.) LTD.

STATE OF BIHAR AND OTHERS', (2004) 7 SCC

166.

8. We have considered the submissions

made on both sides and have perused the record.

It is well settled in law that when there is an

inordinate delay in filing the writ petition and

when all the steps are taken in the acquisition

proceedings, which have become final, the court

should be loath to quash the notifications. It has

further been held that though this court has

discretionary powers under Article 226 of the

Constitution of India but the said powers have to

be exercised taking into account all relevant

factors into pragmatic consideration. It has further

been held that when the award has been passed

and the possession is taken the court should not

exercise its power to quash the award which is a

material factor to be taken into consideration

before exercising the powers under Article 226 of

the Constitution of India. [SEE: 'MUNICIPAL

CORPORATION OF GREATER BOMBAY VS.

INDUSTRIAL DEVELOPMENT INVESTMENT CO.

PVT. LTD & ORS.', (1996) 11 SCC 501,

'MUNICIPAL CORPORATION OF GREATER

BOMBAY VS. SHAH HYDER BEIG & ORS.',

(2000) 2 SCC 48, 'SWAIKA PROPERTIES PVT.

LTD. AND ORS. VS. STATE OF RAJASTHAN AND

ORS.', AIR 2008 SC 1494 AND 'JASVEER SIGH

AND ORS. VS. STATE OF UTTAR PRADESH AND

ORS.', (2017) 6 SCC 787.

9. In the instant case, preliminary

notification as well as final notification dated

03.11.1977 and 13.11.1980 under Section 17 and

Section 19 of the Act were issued. Thereafter, an

award was passed on 06.10.1982. The writ

petition filed by the father of the owners viz.,

W.P.No.41625/1982 was dismissed for non

prosecution on 31.01.1982. The owners have filed

this petition after a period of 34 years, for which

no explanation has been offered. However, learned

Single Judge has failed to appreciate the aforesaid

aspect of the matter. The writ petition suffered

from inordinate delay and laches and ought not to

have been entertained on this ground alone.

10. In the writ petition, the petitioners have

sought for the following reliefs:

(i) Issuing a writ in the nature of mandamus or any other appropriate writ or order or direction to declare the preliminary notification No.BDA/SALAO/C3PR/301/77-78 dated, 3rd November 1977, issued under Sub-Section (1) and (iii) of Section 17of the Bangalore Development Authority Act, 1976 (in short BDA Act) vide Annexure-A and consequently the final notification No.HUD/35/MNJ/78 dated 13.11.1980, issued under Section 19(1) of the BDA Act, vide Annexure-B for the formation of the layout called 'Banasvadi Scheme between old

Madras Road and Banasvadi Road' (OMBR Layout), as lapsed under Section 27 of BDA Act, in respect of petition schedule property or

(ii) Issue a writ in the nature of mandamus or any other appropriate writ or order or direction to declare the preliminary notification No.BDA/SALAO/C3PR/301/77-78 dated 3rd November 1977, issued under sub Section (1) and (3) of Section 17 of the Bangalore Development Authority Act, 1976 (in short BDA Act) vide Annexure-A and consequently the final notification No.HUD/35/MNJ/78 dated 13.11.1980, issued under Section 19(1) of the BDA Act, vide Annexure-B for the formation of the layout called 'Banasvadi Scheme Between old Madras Road and Banasvadi Road' (OMBR Layout) as lapsed under Section 24(2) of Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, in respect of petition schedule property.

11. So far as the issue with regard to

applicability of Section 24(2) of the 2013 Act to the

proceeding under the Act is concerned, the same

is no longer res integra. A division bench of this

court vide judgments dated 19.04.2021 and

21.06.2021 passed in writ appeal No.1274/2018

and Writ Appeal No.3487/2016 has held that the

provision of Section 24(2) of the Act do not apply

to the proceeding initiated under the Act.

Therefore, the finding recorded by the learned

Single Judge that the proceeding under the Act

would lapse in view of Section 24(2) of the 2013

Act cannot be sustained.

12. Now we may examine whether the

proceeding initiated under Act has lapsed in view

of Section 27 of the Act. A division bench of this

court in 'KRISHNAMURTHY VS. BANGALORE

DEVELOPMENT AUTHORITY', ILR 1996 KAR

1258 has held that a proceeding under Section 27

of the Act would lapse only if two conditions are

satisfied viz., failure to execute the scheme by

dereliction of statutory duties without any

justification and substantial execution of the

scheme depending upon the nature of the scheme.

13. In the instant case, in the writ petition

following averments have been made:

18. The final notification has been issued in the year 1980, it was incumbent upon the respondent authority to have implemented the scheme within the period of 5 years

from the final notification. In the instant case, the fact that the BDA has informed the petitioners vide endorsement dated 18.09.2015 that sites are not formed in respect of Sy.No.225/1 of Banasvadi Villge i.e., petition schedule property, makes it clear that the scheme is not implemented insofar as petition schedule property is concerned as the same still remains in the physical possession of petitioners. Hence the rigour of Section 27 of BDA Act, along with Section 24(2) of the Right to Fair compensation Act would be attracted.

Thus, it is evident that there is no pleading in

the writ petition that there has been a dereliction

of duty in implementing the scheme. In the

absence of any such pleading, the finding with

regard to applicability of Section 27 of the Act

cannot be recorded. From the sketch available on

record, it is evident that Authority has utilized the

part of the land for construction of roads and has

also constructed a Storm Water Drain (SWD).

14. For the aforementioned reasons, the

order passed by the learned Single Judge is set

aside. From the photographs annexed to the