Karnataka High Court

Bengaluru Development Authority vs Smt Rashme Hegde Gopi on 4 July, 2023

Bench: Alok Aradhe, Anant Ramanath Hegde

                                              -1-
                                                    NC: 2023:KHC:22869-DB
                                                          WA No. 723 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 4TH DAY OF JULY, 2023

                                           PRESENT
                            THE HON'BLE MR JUSTICE ALOK ARADHE
                                             AND
                        THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
                            WRIT APPEAL NO. 723 OF 2021 (LA-BDA)
                   BETWEEN:

                   1.    BENGALURU DEVELOPMENT AUTHORITY,
                         T.CHOWDAIAH ROAD, BENGALURU,
                         REPRESENTED BY ITS COMMISIONER,
                         BANGALORE-560 020.
                   2.    SPECIAL LAND ACQUISITION OFFICER,
                         BENGALURU DEVELOPMENT AUTHORITY,
                         T.CHOWDAIAH ROAD, BENGALURU.
                                                               ...APPELLANTS
                   (BY SRI MURUGESH V CHARATI, ADVOCATE)
                   AND:

                   1.    SMT RASHME HEGDE GOPI,
Digitally signed         W/O SURESH GOPI,
by BELUR
RANGADHAMA               AGED ABOUT 63 YEARS,
NANDINI                  R/AT SHANKARA FOUNDATION,
Location: HIGH           DODDAKALLANSADRA,
COURT OF
KARNATAKA                KANAKAPURA ROAD,
                         BANGALORE - 560 060.
                   2.    SMT. SHAILA S. HEGDE,
                         W/O LATE B.T.SHANKER HEGDE,
                         AGED ABOUT 88 YEARS,
                         R/AT SHREE SHYLA,
                         DODAKALLASANDRA,
                         KANAKAPURA ROAD,
                         BENGALURU-560062.
                                 -2-
                                      NC: 2023:KHC:22869-DB
                                             WA No. 723 of 2021




3.   STATE OF KARNATAKA,
     REPRESENTED BY ITS SECRETARY,
     HOUSING AND URBAN DEVELOPMENT
     DEPARTMENT, BENGALURU-560 001.

                                                  ...RESPONDENTS
(BY SRI UDAYA HOLLA, SR.COUNSEL FOR
SRI K.SRIHARI, ADVOCATE FOR R1 & R2,
SRI B. RAJENDRA PRASAD, HCGP FOR R3 )

     THIS WRIT APPEAL IS FILED UNDER 4 OF THE
KARNATAKA HIGH COURT ACT, 1961 PRAYING TO: (1) SET
ASIDE THE ORDER DATED 26.07.2017 PASSED BY THE
HON'BLE LEARNED SINGLE JUDGE IN W.P. NO. 16220-
221/2016 (LA-BDA), AND ALLOW THE WRIT APPEAL BY
DISMISSING THE WRIT PETITION AND ETC.,

    THIS APPEAL COMING ON FOR ORDERS THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                             JUDGMENT

This intra Court appeal against an order dated

26.07.2017 passed by the learned Single Judge by which Writ

Petitions preferred by respondents/land owners has been

allowed and the acquisition proceedings in respect of land

bearing Sy.No.54/2 measuring 2 acres 8.6 guntas of land

situated at Gubbalala Village, Uttarahalli Hobli, Bengaluru South

Taluk has been held to be lapsed and abandoned by the

Bengaluru Development Authority.

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2. Facts giving rise to filing of this appeal briefly stated

are that:

- respondents 1 and 2 are the owners of land measuring

2 acres 8.6 guntas in Sy.No.54/2 situated at Gubbalala Village,

Uttarahalli Hobli, Bengaluru South Taluk (hereinafter referred to

as the 'land in question' for short). The aforesaid land along

with several other lands was notified for acquisition by the

Bengaluru Development Authority and the preliminary

notification under Section 17(1) of the Bengaluru Development

Authority Act, 1976 (Hereinafter referred to as the 'Act' for

short) was issued on 07.11.2002. Thereafter, final notification

under Section 19 of the Act was issued on 9.9.2003.

3. Respondents No.1 and 2 had earlier filed Writ Petition

No.43629/2003 which was disposed of on 04.01.2007 by the

learned Single Judge of this Court with a liberty to respondents

1 and 2 to pursue their representation seeking denotification of

the land.

4. Thereafter, respondents 1 and 2 filed Writ Petitions

No.16220-221/2016 in which a declaration was sought that the

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scheme viz., Banashankari VI Stage initiated by the Bengaluru

Development authority has lapsed on account of efflux of time.

Learned Single Judge by order dated 26.07.2017 interalia held

that the scheme in question has lapsed. In the aforesaid factual

background, this appeal has been filed.

5. Learned counsel for the Bengaluru Development

Authority fairly submitted that after issuance of the preliminary

as well as final notification, no award has been passed till

today. However, it was submitted that it was not open for

respondents No.1 and 2 to file another Writ Petition and to seek

a declaration that the scheme in question has lapsed as in the

earlier Writ Petition they had sought denotification of the land

in question.

6. On the other hand, learned Senior Counsel for the

respondents submits that inaction on the part of the Bengaluru

Development Authority amounts to infraction of constitutional

right of respondents No.1 and 2, guaranteed under Article 300-

A of the Constitution of India.

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7. We have considered the submissions made on both

sides and perused the records.

8. The Division Bench of this Court in Writ Appeal

No.557/2021 and connected matter disposed of on 23.03.2022

has held as under:

"4. In 'RAM CHAND AND OTHERS V.

UNION OF INDIA AND OTHERS'. (1994) 1 SCC 44, the Supreme Court was dealing with situations prevalent prior to amendment to the Land Acquisition Act, 1894 by Land Acquisition Act Amendment in 1984. In the aforesaid case, the Notification under Section 4(1) of the Act and declarations under Section 6(1) of the Act were issued on 23.01.1959, 24.10.1961 and 16.05.1966 and 13.01.1969 respectively. However, the awards were not passed. The Supreme Court held that in view of decision in 'AFLATOON V LT. GOVERNOR OF DELHI; (1975) 4 SCC 285, there was no justification for not passing the award and by placing reliance on the aforesaid decision, it was held that two years period would be a reasonable time for making an award, as for when the statute does not prescribe a time limit for performing an Act, the same has to be performed within reasonable time.

5. However, a division bench of this Court in 'H.N.SHIVANNA AND OTHERS VS. STATE OF KARNATAKA AND ANOTHER; W.A.NOS.3189- 3201/2010 DATED 28.11.2012, held that issuance of successive declarations are permissible and by placing reliance on decision of Supreme Court in Ram Chand and others supra, held that 2 years time would be a reasonable time for issuance of declaration under Section 28(4) of the Act. However it is pertinent to note that the division

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bench in SHIVANNA's case also held that provisions of the Land Acquisition Act, 1894 cannot be read into the Act and though no time limit is prescribed under the Act, the acquisition is to be completed within a reasonable time, say within 2 years, and still what is the reasonable time has to be decided in the facts of particular case. The Supreme Court in'M.NAGABHUSHANA VS. STATE OF KARNATAKA'. (2011) 3 SCC 408, negatived the contention that since, the award was not passed within a period of 2 years from the date of declaration under Section 28(4) of the Act, the acquisition would not stand vitiated in view of the fact that Section 11(A) of the Land Acquisition Act, 1894 are not applicable to proceedings under the Act. Therefore, different time frames prescribed under the Land Acquisition Act and consequences of default thereof including lapsing of acquisition proceedings cannot be read into the Act.

6. The right to hold the property is a constitutional right which is guaranteed under Article 300-A of the Constitution of India and no citizen can be deprived of his property without following the due process of law. It is well settled legal proposition that where a statute does not provide for time limit for doing an Act, such an Act has to be done within a reasonable time, and what would be reasonable time has to be decided in the facts and circumstances of the Act. (See: 'MEHER RUSI DALAL V UNION OF INDIA', (2004) 7 SCC 362, 'P.K.SREEKANTAN V P.SREEKUMARAN NAIR', (2006) 13 SCC 574 and 'K.B NAGUR V UNION OF INDIA', (2012) 4 SCC 483".

9. In the instant case, preliminary notification was issued

on 07.11.2002 whereas the final notification was issued on

09.09.2003. The Bengaluru Development Authority has not

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passed an award even after a lapse of about 14 years, Thus,

there has been an inordinate delay in completion of the land

acquisition proceedings. Therefore, in the absence of any

explanation on behalf of the Bengaluru Development Authority,

for the delay in concluding the land acquisition proceeding, the

notifications dated 07.11.2002, 09.09.2003 insofar as it

pertains to land held by respondents 1 and 2 cannot be

sustained in the eye of law. It is accordingly quashed.