Karnataka High Court
K. Narasimhamurthy vs State Of Karnataka on 8 April, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2024:KHC:14491
WP No. 10462 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 10462 OF 2021 (LA-BDA)
BETWEEN:
1. K. NARASIMHAMURTHY
S/O. LATE G. KRISHNAPPA,
AGED ABOUT 65 YEARS,
R/AT NO. 35/2, 38TH A CROSS,
2ND MAIN, JAYANAGAR 8TH BLOCK,
BENGALURU-560 082
2. K. JAYARAM
S/O. LATE G. KRISHNAPPA,
AGED ABOUT 63YEARS,
R/AT VILLA NO. C/61,
SKYLARK ARCADIA,
SADARAMANGALA ROAD,
SHAKTI LAYOUT, KODIGEHALLI,
BENGALURU-560 067.
...PETITIONERS
Digitally (BY SRI. MADHUSUDHAN.R.NAIK., SENIOR COUNSEL FOR
signed by
KIRAN SRI. ROHAN HOSMATH., ADVOCATE)
KUMAR R
Location:
HIGH AND:
COURT OF
KARNATAKA
1. STATE OF KARNATAKA
REP BY ITS PRINCIPAL SECRETARY,
URBAN DEVELOPMENT DEPARTMENT,
VIKASA SOUDHA, AMBEDKAR VEEDHI,
BENGALURU-560 001.
2. THE COMMISSIONER
BANGALORE DEVELOPMENT AUTHORITY,
NO. 7, T. CHOWDAIAH ROAD,
KUMARA PARK WEST, BANGALORE-560 020.
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WP No. 10462 of 2021
3. THE SPL. LAND ACQUISITION OFFICER
BANGALORE DEVELOPMENT AUTHORITY,
NO. 7, T. CHOWDAIAH ROAD,
KUMARA PARK WEST,
BANGALORE-560 020.
...RESPONDENTS
(BY SRI. MANJUNATHA.K., HCGP, FOR R-1;
SRI. K.KRISHNA., ADVOCATE FOR R-2 & R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE AWARD DATED 29.05.2021 PASSED IN LAC 184/1986-87
IN RESPECT OF THE PETITIONERS LAND MEASURING 1 ACRE
11 GUNTAS IN SY.NO.49 OF BENNIGANAHALLI VILLAGE,
K.R.PURAM HOBLI, BENGALURU EAST TALUK IS CONCERNED
COPY SUBMITTED AT ANNEXURE-A, ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The land bearing Sy.No.49 of Benniganahalli Village
measuring 1 acre 11 guntas was permitted to be used for
industrial purpose way back in the year 1964. The said
land was purchased by the father of the petitioners on
18.05.1972 and, thereafter, he applied for approval of
construction of factory building from the erstwhile CITB.
The CITB by its Board resolution No.473 dated 02.08.1972
approved the development plan. The father of the
petitioners then started a small scale industry.
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2. On 28.05.1984, a notification under Section 17(1) of
the Bangalore Development Authority Act (for brevity,
"the Act") was issued for the purpose of forming a layout
called "East of NGEF". In this notification, the land bearing
Sy.No.49 was also notified. On 23.10.1986, a declaration
under Section 19 of the BDA Act was issued, in which also,
the land bearing Sy.No.49 was included. However, neither
was an award passed in respect of this land, nor was the
possession taken.
3. It appears that, thereafter, the 1st petitioner filed a
suit for partition in O.S.No.6712/2016 and this ended in a
compromise, whereby the petitioners were allotted lands
in question.
4. The petitioners thereafter filed W.P.No.11888/2020
seeking a mandamus to the State to denotify the land or
to grant compensation as per the provisions of the Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (for brevity,
"the 2013 Act"). This Court by an order dated
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30.11.2020 disposed of the writ petition directing the BDA
to consider the grievances put forth by the petitioners and
pass appropriate orders. Since this order was not complied
with, the petitioners initiated contempt proceedings in
CCC.No.238/2021. On the basis of the statement made in
the contempt, the greivances of the petitioners was
considered and the Division Bench accordingly dropped the
proceedings.
5. Thereafter, on 29.05.2021, an award has been
passed in respect of land bearing Sy.No.49 and the
petitioners, being aggrieved by the award, are before this
Court in this petition.
6. Sri Madhusudhan R.Naik, learned Senior Counsel
appearing for the petitioners submitted that if the BDA had
not passed an award even after 35 years from the date of
issuance of a declaration and had not taken possession, it
is obvious that the acquisition proceedings were
abandoned. He submitted that the petitioners have been
running an industrial unit right from the year 1972 and
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merely because the petitioners came before this Court and
sought for a direction to either denotify the land or to pass
an award compensation under the 2013 Act, that would
not entitle the BDA to pass an award in the year 2021, and
that too, taking the market value of the year 1984.
7. He also submitted that the State has in fact
denotified the adjoining land bearing Sy.No.50/2 by
issuance of a notification in the year 2010 and this, by
itself, indicates that the land of the petitioners was
obviously not required by the BDA.
8. Learned counsel appearing for the BDA, on the other
hand, contended that the petition filed by the petitioners
challenging the acquisition cannot be maintainable since in
the earlier round of litigation, the petitioners did seek for
compensation. He submitted that once a claim for
compensation is made, the right to challenge acquisition is
completely lost. He submitted that the petitioners cannot
also seek a direction to denotify the land merely on the
ground that adjoining lands have been denotified.
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9. He has placed reliance on the judgment in the case
of V.T.Krishnamoorthy1 in relation to the claim for
compensation and challenge to acquisition, and also on the
decision of the Apex Court in the case of Beerbal2 in
relation to the plea of res judicata. He has also placed
reliance on the judgment of the Apex Court in the case of
Chandigarh Administration3 in relation to issuance of a
writ by which an authority cannot be compelled to repeat
an illegality over and over again.
10. Learned Senior Counsel appearing for the petitioners
by way of reply submitted that the filing of earlier petition
can never be considered as res judicata since the
petitioners did seek denotification and in the alternative
for compensation. However, this Court, without
adjudicating said issue, merely directed the BDA to
consider the grievance of the petitioners and therefore, it
V.T.KRISHNAMOORTHY Vs. STATE OF KARNATAKA - ILR 1991 KAR 1183
BEERBAL SINGH Vs. STATE OF UTTAR PRADESH & OTHERS - (2018) 13 SCC 675
CHANDIGARH ADMINISTRATION & ANOTHER Vs JAGJIT SINGH & ANOTHER - AIR
1995 SC 705
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cannot be assumed that the petitioners did claim for
compensation only.
11. He also pointed out that the claim for compensation
was for passing an award under the 2013 Act and not for
awarding of compensation under the Land Acquisition Act,
1894 (for brevity, "the 1894 Act"). He also submitted
that in view of the stand taken by the BDA, a review
petition was filed in RP.138/2023 and in this review
petition, the learned Single Judge, who passed the order in
WP.No.11888/2020, has clarified that the order passed in
the writ petition would not affect or cause prejudice to the
rights of both the petitioners and the respondents in the
said petition, and all aspects of the matter were kept
open.
12. In view of the above, the only question that would
arise for consideration in this petition is:
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Whether the BDA can proceed to pass an
award nearly 35 years after the declaration has
been issued?
13. It is not in dispute that the notifications under
Sections 17 and 19 of the BDA Act were issued in the year
1984 and 1986 respectively. It is also not in dispute that
the petitioners did not challenge the acquisition and did
not secure any interim order from any Court restraining
the BDA from taking further steps in the matter. It is to be
stated here that even though Section 11A of the 1894 Act
would be inapplicable to the acquisitions under the BDA
Act, nevertheless, the BDA cannot proceed to keep quiet
for nearly 3½ decades and then pass an award and try to
secure possession. It is to be noticed here that in the
present case the only probable reason for the BDA to pass
an award in the year 2021 is because the petitioners had
filed W.P.No.11888/2020 seeking for a direction to either
denotify the land in question or to pass an award under
the 2013 Act. In my view, this prayer of the petitioners in
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W.P.No.11888/2020 cannot confer a right on the BDA to
pass an award in the year 2021.
14. It is to be stated here that the BDA is expected to
pass an award within a reasonable time. In a case such as
this, when there was absolutely no impediment to pass an
award for nearly 3½ decades, the BDA cannot take
advantage of filing of a writ petition by the petitioner to
pass an award and then claim that it has acquired the
lands. The award that is passed by the BDA cannot
therefore be sustained.
15. However, as regards the reliance placed by the
learned counsel for the BDA on the decision in the case of
V.T.Krishnamoorthy, it is to be noticed here that in that
particular case, the Division Bench was not considering the
case where an award had not been passed for 37 years
and was only considering the challenge to an acquisition
made within time, but the right to challenge acquisition
was negated because a claim for compensation had been
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made. The ratio of the said judgment cannot therefore be
applicable.
16. As far as the decision of the Apex Court with regard
to constructive res judicata is concerned, it is to be stated
here that the petitioner did seek for a direction to denotify
or pass an award. If this Court had passed an order
holding that the Government was required to denotify or
that an award was to be passed, then a subsequent writ
petition seeking for the same relief would be a bar on the
principles of res judicata. In the earlier round of litigation,
this Court did not consider the claim of the petitioners on
merits and merely directed the BDA to consider the
grievances put forth by the petitioners. Such a direction
issued on the basis of the writ petition of the petitioners
for denotification cannot be construed as res judicata, I
am therefore of the view that the contentions advanced by
the BDA cannot be accepted.
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17. In view of the above, the impugned notifications and
the award, insofar as the petitioners are concerned, are
quashed. Writ Petition is accordingly allowed.
Sd/-
JUDGE
PKS
