Smt Badamma vs The State Of Karnataka
2023 Latest Caselaw 846 Kant

                           1



 IN THE HIGH COURT OF KARNATAKA, BENGALURU

   DATED THIS THE 13TH DAY OF JANUARY, 2023

                        BEFORE

    THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

 WRIT PETITION NO.58827 OF 2013 (LA-BDA)
BETWEEN:

1. SMT. BADAMMA,
   W/O G THIMMAIAH,
   AGED ABOUT 74 YEARS,

2. SRI. T. THIMMAIAH,
   S/O G THIMMIAHA,
   SINCE DEAD BY LRS.

2(A) RENUKAMMA,
   W/O LATE T THIMMAIAH,
   AGED ABOUT 45 YEARS,

2(B) NAVEEN YADAV N T,
   S/O LATE T THIMMAIAH,
   AGED ABOUT 27 YEARS,

2(C) GEETHA T,
   D/O LATE T THIMMAIAH,
   AGED ABOUT 24 YEARS,

3. SMT DODDAMMA
   D/O G THIMMAIAH,
   AGED ABOUT 49 YEARS,
ALL ARE RESIDENTS OF
NAGADEVANAHALLI VILLAGE,
KENGEI HOBLI, JNANABHARATHI POST,
BANGALORE-560 056
                                         ...PETITIONERS
(BY SRI.ASHOK HARANAHALLI, SENIOR COUNSEL A/W
    SRI.SANMITH S, ADVOCATE FOR P1 TO P3)
                          2



AND:

1. THE STATE OF KARNATAKA
   REPRESENTED BY ITS PRINCIPAL SECRETARY,
   HOUSING AND URBAN DEVELOPMENT
   DEPARTMENT, "VIKASA SOUDHA",
   DR AMBEDKAR VEEDHI,
   BANGALORE-560 001.

2. THE SPECIAL LAND ACQUISITION OFFICER
   BANGALORE DEVELOPMENT AUTHORITY,
   KUMARA PARK WEST,
   BANGALORE-560 006.

3. THE COMMISSIONER
   BANGALORE DEVELOPMENT AUTHORITY,
   KUMARA PARK WEST,
   BANGALORE-560 006.

4. RAJARAJESHWARI HOUSE BUILDING
   CO-OPERATIVE SOCIETY,
   NO.30/E, 5TH CROSS, VARDHAMAN BLOCK,
   KARNIK ROAD, BANGALORE-560 006.
   REP BY ITS SECRETARY.
                                       ...RESPONDENTS
(BY SRI.R SRINIVASA GOWDA, AGA FOR R1;
    SRI.SRINIVAS BHAT, ADVOCATE FOR R2 & R3;
    SRI.M BABU, ADVOCATE FOR R4)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARE THAT THE SCHEME FOR WHICH THE PRELIMINARY
NOTIFICATION DTD.19.1.1989 AS PER ANNEX-J, AND THE
FINAL NOTIFICATION DTD.19.1.1994 VIDE ANNEX-K, HAS
ELAPSED AND QUASH THE PRELIMINARY NOTIFICATION
BEARING DTD.19.1.1989 AS PER ANNEX-J AND THE FINAL
NOTIFICATION BEARING DTD.19.1.1994 VIDE ANNEX-K AND
ETC.,

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
                                      3



                                ORDER

Petitioners are knocking at the doors of Writ Court

for assailing the acquisition proceedings of the lands in

question on several grounds.

2. Learned Sr. Advocate appearing for the

Petitioners argues that it has been a settled position of

law that if the statutory sanction has not been obtained

at the hands of the Government under Section 18(3) of

the Bangalore Development Authority Act, 1976, the

acquisition proceedings cannot be sustained; that on the

very same ground, relief has been granted to other land

owners by a Coordinate Bench of this Court in

W.P.Nos.16827-16834/1994 etc., between YELLAPPA &

OTHERS vs. STATE & OTHERS, disposed off on

07.10.1996; if the Scheme has not been implemented

within the statutory period, the acquisition would lapse

and land should revert to it's owners; the acquisition in

question is not in public interest; the BDA has

recommended for denotification.

3. After service of notice, the State has entered

appearance through the learned AGA; the BDA is

represented by its learned Panel Advocate; the Housing

Society is represented by its own learned counsel. Both

the BDA & the Society have filed their Statements of

Objections resisting the Writ Petition. Both the learned

AGA and the BDA Panel Counsel oppose the Petition

making submission in justification of the acquisition.

They plead about delay & laches in the filing of Petition.

They controvert Petitioners' submissions and seek

dismissal of Petition.

4. Having heard the learned counsel for the

parties and having perused the Petition Papers, this

Court is inclined to grant indulgence in the matter for the

following reasons:

A) AS TO DELAY & LACHES:

(i) The proceedings for acquisition commenced

vide Preliminary Notification dated 19.01.1989 issued

under Sections 17(1) & (3) of the 1976 Act; the Final

Notification was issued under Section 19(1) on

19.01.1994. The Government granted the so called

'sanction' on 10.08.1989 which is held to be no sanction

by the Coordinate Bench in YELLAPPA case, supra. Once

the proceedings are a nullity, ordinarily, there is no

limitation for laying a challenge to the same; the

question of laches also does not much arise since

admittedly, no development has taken place in the

subject land which is said to be in the encroachment of

the Respondent - Society. A truncated mahazar has been

drawn with the signatures of a few villagers without

mentioning their material particulars. Admittedly, the

Petitioners have not received the compensation although

the BDA has deposited the same in the court. After such

a deposit, whether any notice was issued to the

Petitioners is also not forthcoming from the records.

(ii) It is stated at the Bar that the subject land

has been in the encroachment of the Respondent -

Housing Society and that the BDA has lodged a Police

complaint in that regard, the subject acquisition having

not been made for the benefit of the said Society. The

BDA has written to the Government for the dropping of

acquisition stating that this land is not required for the

formation of layout in question. Admittedly, no layout has

been formed nor any third party interest is created in

respect of the land. Therefore, the Petitioners are more

than justified in contending that delay & laches be

condoned and the land be restored to them.

(iii) The vehement submission of learned Panel

Counsel for the BDA that the challenge to the acquisition

is highly belated, does not merit acceptance for other

reasons too: firstly, the Right to Property is

constitutionally guaranteed to the citizens under Article

300A. The statutory sanction is held to be no sanction

by a Coordinate Bench in respect of notified lands

belonging to others, infra. The Apex Court in SUKH

DUTT RATRA & ANOTHER VS. STATE OF HP & OTHERS

(2022) 7 SCC 508 at paragraph 17 & 18 has observed as

under:

"When seen holistically, it is apparent that the State's actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and compel them to approach this Court, albeit belatedly... There is a walter of precedents on delay and laches which conclude either way - as contended by both sides in the present dispute - however, the specific factual matrix compels this Court to weigh in favour of the appellant land owners. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a "limitation" to doing justice...."

These observations come to the aid of Petitioners in the

fact matrix of the case.

B) AS TO ABSENCE OF STATUTORY SANCTION:

(i) The submission of Mr. Ashok Haranahalli

learned Sr. Advocate appearing for the Petitioners that

the sanction of the Government as required under

Section 18(3) of the 1976 Act is a sine qua non for the

issuance of a Final Notification under Section 19(1), is

supported by a Coordinate Bench decision in YELLAPPA'S

Case, supra. It is pertinent to mention that the said

litigants were the owners of adjoining lands notified in

the very same acquisition for the very same Project. The

Coordinate Bench at para 5 of its judgment has observed

as under:

" ...The order dated 10.03.1989 referred to in the Final Notification is an order issued much earlier to filing of Objections by the land owners pursuant to the notices under Section 17(5) of the Act. It is clear from reading of Section 18 that after considering the Objections, if any, BDA has to submit its Report and other particulars for the purpose of sanction under Section 18(3) of the Act.... The above facts clearly show that the order referred to in the Notification issued under Section 19 of the Act is much earlier to the date of Objections and therefore, it cannot said to be a sanction under Section 18(3) of the Act...."

Having so observed, the Court quashed the Final

Notification so far as the litigants in the case were

concerned, reserving liberty to proceed with the

acquisition, in accordance with law. Subsequently, the

Final Notification has been issued, is true. However, that

does not cover Petitioners' lands.

(ii) The vehement contention of learned AGA and

the BDA counsel that the Petitioners cannot seek refuge

under the judgment of a Coordinate Bench since the

relief was confined to the litigants therein, is bit difficult

to countenance. The reasons for this are obvious: firstly,

the acquisition was under the very same Notifications

and for the very same Housing Project namely

Gnanabharathi Layout; if a constitutional court after

perusal of the original records has recorded a finding that

the Government Order dated 10.08.1989 could not be

construed as the sanction under Section 18(3) of the

1976 Act, it is unconscionable on the part of the

respondent-Government & BDA to contend to the

contrary qua other land owners. In matters like this,

invocation of res judicata would not much help to exclude

the benefit of a finding to the similarly circumstanced

persons on the ground that they were not parties to the

proceeding in which such a finding is recorded, especially

when it has overtones of law. When in a given set of

facts, relief has been granted to some land owners,

denying the same to others, strikes at the root of reason,

justice & fairness, with which ordinarily, the

Constitutional Courts do operate.

(iii) Mr. Haranahalli is more than justified in

arguing that the Final Notification issued sans sanction of

the Government under Section 18(3) of the 1976 Act and

all subsequent proceedings following the same are

absolutely without jurisdiction and therefore, a nullity,

the requirement of sanction being a sine qua non. It is

also supported by the decision of the Coordinate Bench in

YELLAPPA Case supra.

C) AS TO BDA RECOMMENDING FOR GIVING UP THE LANDS:

The BDA itself has suggested to the Government

that the said lands are no longer required and therefore,

be dropped from acquisition process.

Mr. Haranahalli is right in drawing attention of the Court

to the instruction of the then Chief Minister to the BDA

Commissioner to drop the acquisition proceedings as is

reflected in the "anoupachaarika tippani" dated

17.01.2014, a copy whereof avails at Annexure - R4(7)

to the Statement of Objections filed by the respondent-

Society. It also specifically mentions: that no layout has

been formed in this land; several unauthorized RCC

structures have been erected therein long back; several

persons have put up construction after obtaining Katha

and Building Licenses at the hands of BBMP; these

structures have been given power & water supply and

provided with sanitary facilities. If that be so, there is no

justification for the BDA or the Government in opposing

the Writ Petition. An argument to the contrary cannot be

sustained, the opponents being the State entities who

should conduct themselves as model litigants consistent

with constitutional aspirations.

D) AS TO NON-EXECUTION OF THE SCHEME WITHIN THE STATUTORY PERIOD:

It is submitted on behalf of the Petitioners that the

statutory scheme in question has not been substantially

accomplished within the prescribed period and therefore,

the same lapses by operation of law. Whether the

scheme has been substantially executed is a matter

exclusively lying within the knowledge of the BDA. No

evidentiary material is produced by the Respondent -

BDA to prima facie show that the Scheme has been

substantially executed. The Statement of Objections filed

by the erstwhile Panel Counsel of the BDA militantly lacks

in material particulars. No Objections have been filed by

the State to the Writ Petition. In the absence of contra

pleadings, the vehement submissions of learned AGA and

the BDA Counsel would not come to the rescue of their

clients.

In the above circumstances, this Writ Petition

succeeds; a Writ of Certiorari issues quashing the

acquisition proceedings at and from the stage of Final

Notification that culminated into the Award dated

01.04.1997, to the extent the same relate to the Petition

lands. Liberty is reserved to the State and the BDA to

proceed with the Preliminary Notification dated

19.01.1989 at Annexure - J, should they so desire.

Costs made easy.

Sd/-

JUDGE Snb