Karnataka High Court
Bengaluru Development Authority vs Sri Hanumanthappa on 23 February, 2023
Bench: Alok Aradhe, Vijaykumar A Patil
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY 2023
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A PATIL
WRIT APPEAL NO.1525 OF 2014 (LA-BDA)
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WRIT APPEAL NO.1526 OF 2014 (LA-BDA)
WRIT APPEAL NO.1527 OF 2014 (LA-BDA)
IN W.A. NO.1525 OF 2014
BETWEEN:
1. BENGALURU DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE-560020
REP. BY ITS COMMISSIONER.
Digitally 2. THE LAND ACQUISITION OFFICER
signed by BANGALORE DEVELOPMENT AUTHORITY
RUPA V KUMARA PARK WEST, BANGALORE-560020.
Location:
High Court ...APPELLANTS
of Karnataka
(BY SRI. JAYA KUMAR S. PATIL, SR. COUNSEL FOR
SRI. G. LAKSHMEESH RAO, ADV.,)
AND:
1. SRI. HANUMANTHAPPA
SINCE DEAD BY LRs.
1(a) SMT. TULASAMMA
W/O LATE HANUMANTHAPPA
AGED 60 YEARS.
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1(b) SRI. SATHISH KUMAR
S/O LATE HANUMANTHAPPA
AGED 37 YEARS.
1(c) SRI. SAGAR
S/O LATE HANUMANTHAPPA
AGED 34 YEARS.
ALL ARE R/AT NO.4, TENT ROAD
GANESH BLOCK
MAHALAKSHMI LAYOUT
BENGALURU - 560 096.
2. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL
SECRETARY, URBAN DEVELOPMENT
DEPARTMENT, VIDHANA SOUDHA
BANGALORE-560001.
...RESPONDENTS
(BY SRI. UDAYA HOLLA, SR. COUNSEL FOR
SRI. S. CHANDRA SHEKAR, ADV., FOR R1 (a-c)
SRI. B. RAJENDRA PRASAD, HCGP FOR R2)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN THE WRIT PETITION 22971/2012 DATED
01/03/2014.
IN W.A. NO.1526 OF 2014
BETWEEN
1. BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE-560020
REPRESENTED BY ITS COMMISSIONER.
2. THE LAND ACQUISITION OFFICER
BANGALORE DEVELOPMENT AUTHORITY
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KUMARA PARK WEST
BANGALORE-560020.
...APPELLANTS
(BY SRI. JAYA KUMAR S. PATIL, SR. COUNSEL FOR
SRI. G. LAKSHMEESH RAO, ADV.,)
AND
1. SRI. BENAKA EDUCATIONAL SOCIETY
MUNESHWARA BLOCK
MAHALAKSHMI LAYOUT
BANGALORE-560086
BY ITS PRESIDENT
SRI. G. S. GURUSIDDAPPA.
2. SRI. G.S. GURUSIDDAPPA
S/O LATE SIDDAPPA
AGED 67 YEARS
R/AT GIJIHALLI
ARASIKERE TALUK-583135
HASSAN DISTRICT.
3. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL
SECRETARY, URBAN DEVELOPMENT
DEPARTMENT, VIDHANA SOUDHA
BANGALORE-560001.
4. SMT. SAMPAMMA
AGED 47 YEARS
D/O LATE YELLAPPA
W/O THIMMAIAH
C/O VENKATASWAMY
NO.38, 7TH MAIN, OLD WATER TANK ROAD
UTTARAHALLI, SUBRAMANYAPURA POST
BANGALORE SOUTH-560061.
RESPONDENTS
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(BY SRI. T.A. KARUMBAIAH, ADV., FOR R1 & R2
SRI. RAGHAVENDRA S, ADV., FOR
SMT. S.B. LAKSHMI, ADV., FOR R4
SRI. B. RAJENDRA PRASAD, AGA FOR R3)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN THE WRIT PETITION 10574/2012 (LA-BDA) DATED
01/03/2014.
IN W.A. NO.1527 OF 2014
BETWEEN
1. BANGALORE DEVELOPMENT AUTHORITY
T. CHOWDAIAH ROAD
KUMARA PARK WEST
BANGALORE-560020
REPRESENTED BY ITS COMMISSIONER.
2. THE LAND ACQUISITION OFFICER
BANGALORE DEVELOPMENT AUTHORITY
KUMARA PARK WEST
BANGALORE-560020.
...APPELLANTS
(BY SRI. JAYA KUMAR S. PATIL, SR. COUNSEL FOR
SRI. G. LAKSHMEESH RAO, ADV.,)
AND
1. GANGAMANI T.R.
D/O RANGAPPA
AGED 51 YEARS
R/A NO. 173, SARASWATHIPURAM
NEAR SUSHEELA NAIDU KALYANA
MANTAPA, NANDINI LAYOUT
BANGALORE-560086.
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2. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL
SECRETARY, URBAN DEVELOPMENT
DEPARTMENT, VIDHANA SOUDHA
BANGALORE-560001.
RESPONDENTS
(BY SRI. T.A. KARUMBAIAH, ADV., FOR R1
SRI. B. RAJENDRA PRASAD, AGA FOR R2)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN THE WRIT PETITION NO.571/2013 DATED
1/3/2014.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY ALOK ARADHE J., DELIVERED THE FOLLOWING:
COMMON JUDGMENT
These intra court appeals have been filed by the
Bangalore Development Authority (hereinafter referred to as
'the Authority' for short). The appeals arise out of common
order dated 01.03.2014 passed by Learned Single Judge in
W.P.No.10574/2012, W.P.No.22971/2012 and
W.P.No.571/2013, by which writ petition preferred by
transferees of the land in question have been allowed and
the notification dated 08.02.2012, withdrawing the
notification under Section 48(1) of the Land Acquisition Act,
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1894 (hereinafter referred to as 'the 1894 Act' for short) has
been quashed. For the facility of reference, facts from
W.A.No.1525/2014 are being referred to.
2. One Sri.Yellappa by an order dated 16.02.1967
was granted land bearing Sy.No.117 (old Sy.No.1) measuring
1 acre situate at Jarakabande Kaval Village, Yeshwanthpur
Hobli, Bangalore North Taluk, Bangalore (hereinafter
referred to as 'the schedule land' for short) under Rule 43(L)
of Mysore Land Revenue (Amendment) Rules, 1960.
3. The schedule land as well as land measuring 393
acres and 25 guntas was required for formation of extension
of Mahalakshmi (Nandini) Layout. A preliminary notification
under Section 17(1) of the Bangalore Development Authority
Act, 1976 (hereinafter referred to as 'the Act' for short) was
issued. Thereafter, a final notification under Section 19(1) of
the Act was issued on 20.09.1979 and an Award was passed
in respect of schedule land as well as land measuring 270
acres and 1 gunta.
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4. A representation dated 08.11.2001 was
submitted by the original owner of the land viz., Sri.Yellappa
seeking de-notification of the land in question. Thereafter, it
appears that the aforesaid land was bequeathed by
Sri.Yellappa by a registered will dated 28.04.2003
bequeathed the schedule land in favour of respondent No.3
(hereinafter referred to as 'the transferee' for short). In
pursuance of the representation submitted by Sri.Yellappa,
the Authority by a communication dated 26.04.2003
informed the State Government that no layout has been
formed on the schedule land and an English medium school
viz., Benaka English Medium School with 12 sheds is situate
on the schedule land and remaining land is vacant. The
State Government thereupon by an order dated 02.05.2003
directed that the matter be placed before the committee
dealing with de-notifications of the lands.
5. The transferee thereafter submitted
representations on 23.04.2007 and 23.06.2008 in which a
prayer was made to drop the schedule land from acquisition.
By a communication dated 03.01.2008, the Authority
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informed the State Government that no notification under
Section 16(2) of the Land Acquisition Act, 1894 has been
issued in respect of schedule land and the School along with
12 sheds is in existence on the schedule land. It was also
stated that no layout has been formed by the authority on
the land in question.
6. The State Government in exercise of powers
under Section 48(1) of the 1894 Act issued a notification
dated 25.01.2010 by which the proceeding for acquisition of
land in respect of schedule land was dropped. The authority
thereafter, issued another notification on 08.02.2012, by
which the notification dated 25.01.2010 was withdrawn.
7. The transferee challenged the aforesaid
notification dated 08.02.2002 in a writ petition. The
authority filed statement of objections as well as additional
objection statement. The transferee also filed a rejoinder in
which the genuineness of alleged mahazar dated 04.07.1988
was disputed and it was asserted that the transferee is in
possession of the schedule land.
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8. The Learned Single Judge by common order
dated 01.03.2014 inter alia held that the mahazar produced
by the authority does not evoke the confidence of the court
as the same is incomplete and does not bear the signature of
the occupant of the land. It was further held that there is no
statement on behalf of the authority that it has taken
possession of the land in question. It was also held that in a
writ petition viz., W.P.No.16001/1995, a bench of this court
by an order dated 04.10.1996 directed that possession of the
schedule land be handed over to Sri.Yellappa. It was also
held that date on which possession of the schedule land is
said to be taken is different in mahazar as well as the letter
dated 01.08.1998 and W.P.No.16001/1995. It was also held
that no notification under Section 16(2) of the Act was
issued. The Learned Single Judge concluded that impugned
notification dated 08.02.2012 was issued after a period of
two years from the date of issuance of notification
withdrawing the land acquisition proceeding. It was also
held that the same is not tenable, it was accordingly
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quashed. In the aforesaid factual background, these appeals
have been filed.
9. Learned Senior counsel for the Authority
submitted that the transferee claims under a registered Will
dated 28.04.2003, which is subject matter of a civil
litigation viz., RFA No.490/2017 and therefore, the
transferee is not entitled to maintain the writ petition on the
basis of a Will, which is subject matter of civil litigation. It is
further submitted that even though a mahazar was
produced, Learned Single Judge erred in holding that
transferee is in possession of the land in question. It ought
to have been appreciated that Section 48 of the 1894 Act
could not have been invoked as the possession of land in
question was taken. It is contended that transferee being a
subsequent transferee could not have filed an application for
de-notification and had no locus to maintain the writ
petition. It is also urged that powers under Section 48 of the
1894 Act could not be invoked in case of acquisition under
the provisions of the Act. In support of aforesaid
submissions, reliance has been placed on decisions of
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Hon'ble Supreme Court in 'BOKARO AND RAMGUR LTD.
VS. STATE OF BIHAR AND ANOTHER', AIR 1963 SC 516,
'WORKMEN OF COCHIN PORT TRUST VS. BOARD OF
TRUSTEES OF COCHIN PORT TRUST AND ANOTHER',
(1978) 3 SCC 119, 'OFFSHORE HOLDINGS PVT. LTD. VS.
BANGALORE DEVELOPMENT AUTHORITY AND OTHERS',
(2011) 3 SCC 139, 'N.A.L. LAYOUT RESIDENTS
ASSOCIATION VS. BANGALORE DEVEL.OPMENT
AUTHORITY AND OTHERS', (2018)12 SCC 400 and
'SHIVKUMAR AND ANOTHRE VS. UNION OF INDIA AND
OTHERS', (2019) 10 SCC 229.
10. On the other hand, Learned Senior Counsel for
the transferee while inviting the attention of this court to the
statement of objection as well as additional statement of
objections filed before the Learned Single Judge by the
authority has pointed out that the authority has not taken
an objection with regard to the locus. It is further submitted
that proceeding for de-notification of the land was initiated
in pursuance of the representation submitted by the original
owner viz., Sri.Yellappa. Attention of this court has also been
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invited to the reports submitted by the authority to the State
Government and it has been pointed out that neither the
possession of the schedule land was taken nor any scheme
was implemented. It was also pointed out that in the reports
of BDA, it is stated that an English Medium School is in
existence on the schedule land. It is contended that in
pursuance of order dated 04.10.1996 passed in
W.P.no.16001/1995 was handed over to the original owner
of the land viz., Yellappa.
11. It is also pointed out that the mahazar does not
contain the names of the owners and the same has been
prepared in a cyclostyled form. The mahazar also does not
contain the names and the addresses of the witnesses and
therefore, has rightly been discarded by the Learned Single
Judge. It is argued that the impugned notification dated
08.02.2012 was issued without any notice to the transferee
and no reasons have been assigned for issuance of
impugned notification. It is contended that the State
Government is competent to withdraw the notification in
exercise of powers under Section 21 of the General Clauses
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Act, 1897. It is also urged that since, in the previous writ
petitions, the issue with regard to validity of notification
dated 08.02.2012 did not arise for consideration, therefore
the principles of res judicata have no application to the fact
situation of the case. In support of aforesaid submissions,
reliance has been placed on decisions of Hon'ble Supreme
Court in 'ASSISTANT COMMISSIONER, COMMERCIAL TAX
DEPARTMENT, WORKS CONTRACT AND LEASING, KOTA
VS. SHUKLA AND BROTHERS', (2010) 4 SCC 785,
'RANBIR SINGH VS. SEHRAWAT VS. STATE OF
HARYANA', (2012) 1 SCC 792, 'MEENAKSHI THIMMAIAH
AND OTHERS VS. STATE OF KARNATAKA', ILR 2010
KAR 62, 'THOMAS PATRAO SINCE DECEASED BY HIS LR
AND ANOTHER VS. THE STATE OF KARNATAKA, REP. BY
ITS SECRETARY AND OTHERS', ILR 2005 KAR 4199, the
order dated 04.11.2011 passed in W.P.No.35517-
35521/2009 (DR.PARTHASARATHY AND OTHERS VS.
STATE OF KARNATAKA) as well as the judgment dated
28.10.2015 passed in W.A.No.5752-56/2012
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(DR.PARTHASARATHY AND OTHERS VS. STATE OF
KARNATAKA).
12. Learned counsel for respondents No.1, 2, and 4
in W.A.NO.1526/2014 has adopted the submissions made
by Learned Senior Counsel for the transferee and it is
argued that the possession has not been taken by the
competent authority.
13. Learned Senior Counsel for the Authority by way
of rejoinder submitted that the mahazar has been validly
prepared and law does not contemplate the requirement of
mentioning the addresses of the witnesses. It is also
submitted that the application seeking de-notification filed
by the original owner as also rejected by an order dated
17.06.2003 and the proceedings pertaining to de-notification
were issued again on the basis of the application submitted
by the transferee on 22.04.2007 and 26.03.2007. Attention
of this court has been invited to para 4 of the writ petition
viz., W.P.No.22971/2012 and it has been pointed out that
the school has been shifted from the schedule land after
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2007 to some other place. It is also contended that in the
facts and circumstances of the case, the State Government
could not have resorted to the powers under Section 21 of
the General Clauses Act, 1897. In support of aforesaid
submissions, reliance has been placed on decision of the
Hon'ble Supreme Court in 'BALWANT NARAYANA BHAGDE
VS. M.D.BHAGWAT AND OTHERS', (1976) 1 SCC 700.
14. We have considered the submissions made on both
sides and have perused the record. The requirement to assign
reasons in support of decisions has been emphasized by
Hon'ble Supreme Court in several decisions. It is trite law that
requirement of assigning reasons in support of a decision
applies to administrative or executive actions as well. In
'VICTORIA MEMORIAL HALL vs. HOWRAH GANATANTRIK
NAGRIK SAMITY', 2010 (3) SCC 732, the reasons were held
to be heartbeat of every conclusion apart from being an
essential feature of principles of natural justice which ensure
transparency and fairness in decision making process. [SEE:
'MAYA DEVI VS. RAJ KUMARI BATRA AND OTHERS',
(2010) 9 SCC 486, 'SANT LAL GUPTA AND OTHERS VS.
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MODERN CO-OPERATIVE GROUP HOUSING SOCIETY
LIMITED AND OTHERS', (2010) 13 SCC 336, 'UNION OF
INDIA AND ANOTHER VS. TALWINDER SINGH', (2012) 5
SCC 480, and 'UNION OF INDIA VS. RAVINDER KUMAR',
(2015) 12 SCC 291].
15. In the instant case, the impugned notification dated
08.02.2012 withdrawing the notification dated 12.01.2010, by
which the land acquisition proceeding was withdrawn, was
subject matter of challenge in the writ petitions. The impugned
notification reads as under:
The orders issued in Notification No.UDD
745 MNX 2001, dated 12.01.2010, de-notifying
the land bearing Sy.No.1 (117) of
Jarakbandekaval Village, Yeshwanthpur Hobli,
Bangalore North Taluk has been reconsidered and
the same is hereby withdrawn with immediate
effect.
16. From perusal of the aforesaid notification, it is
evident that absolutely no reasons have been assigned in the
impugned notification for withdrawal of the notification dated
12.01.2010. It is not the case of the authority that the reasons
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exist on record. Even if they exist, the same has not been
produced before the Learned Single Judge. On this solitary
ground, the impugned notification cannot be sustained in the
eye of law.
17. Now we may advert to the submission made on
behalf of the appellant that since, the possession of the land in
question was taken, therefore, the power under Section 48 of
the Act could not have been exercised and the notification dated
25.01.2010 could not have been issued. A perusal of the
mahazar dated 04.07.1988 indicates that it does not contain
the signatures of the owner. The mahazar is in cyclostyled
proforma and non applicable portion is not even struck off. The
mahazar does not contain the names and addresses of the
witnesses. A division bench of this court in somewhat similar
circumstances, vide judgment dated 28.10.2015 passed in
DR.A.PARTHASARATHY AND OTHERS supra has discarded
the mahazar. We are in respectful agreement with the view
taken by Learned Single Judge of this court and hold that
mahazar dated 04.07.1988 cannot be relied upon to hold that
possession of schedule land has been taken by the authority. It
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is also pertinent to note that in the statement of objections as
well as additional statement of objections, it is not the stand of
the authority that the possession of the land in question has
been taken.
18. So far as the submission that the writ petitions
filed by the transferees are barred on the principles of res
judicata is concerned, suffice it to say that in the previous
writ petition viz., W.P.No.16001/1995 was filed by the
original owner challenging the preliminary as well as the
final notification and the Award, which was passed. The said
writ petition was dismissed by Learned Single Judge by an
order dated 04.10.1996. The transferees were neither parties
in the said writ petition nor the issue of validity of
notification dated 08.02.2012 was involved therein.
Therefore, the decision in the aforesaid writ petition does not
operate as res judicata.
19. The authority has also raised an objection with
regard to locus of the transferees to file the writ petition. We
have carefully gone through the averments made in the
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statement of objections and additional statement of
objections filed on behalf of the authority as well as the
averments made in the memo of appeal. Neither in the
objections filed before the Learned Single Judge nor in
memo of appeal, a ground with regard to locus of the
transferees to file the petitions has been taken. Therefore, we
do not permit the transferees to raise this ground for the
first time at the time of hearing of the appeals. Alternatively,
it may be noted that the proceeding for de-notification was
initiated by the original owner itself and since, the
transferees have interest in the schedule land, therefore, it
cannot be said that they do not have locus. Therefore, the
aforesaid contention does not deserve acceptance.
20. The Hon'ble Supreme Court in Offshore
Holdings Pvt. Ltd. supra has held that the Act is a self
contained Code and the provisions of the 1894 Act insofar as
they provide different time lines and consequences of default
including lapse of proceeding under Section 11A of 1894 Act
cannot be read into the Act. However, the State Government
is competent to rescind the notification withdrawing the
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acquisition proceeding under Section 21 of the Karnataka
General Clauses Act, 1897. Therefore, the contention that
notification withdrawing the land acquisition proceeding
could not have been withdrawn, does not deserve
acceptance.
For the aforementioned reasons, we do not find any
ground to differ with the conclusion arrived at by the
Learned Single Judge.
In the result, the appeals fail and are hereby
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
SS
