Karnataka High Court

Sri.T.M. Shankarappa vs State Of Karnataka on 9 May, 2024

Author: N S Sanjay Gowda

Bench: N S Sanjay Gowda

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                                              WP No. 21640 of 2023




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 9TH DAY OF MAY, 2024

                                  BEFORE
                THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                 WRIT PETITION No. 21640 OF 2023 (LA-RES)

            BETWEEN

            1 . SRI.T.M. SHANKARAPPA
                S/O LATE SHRI MUNISWAMY
                AGED ABOUT 60 YEARS,

            2 . SRI T M MUNIRAJU
                S/O LATE SHRI MUNISWAMY
                AGED ABOUT 55 YEARS,

            3 . SRI T M CHANDRAPPA
                S/O LATE SHRI MUNISWAMY
                AGED ABOUT 61 YEARS,

            4 . SMT T M VANAMALA
Digitally
signed by       D/O LATE SHRI MUNISWAMY
KIRAN
KUMAR R         AGED ABOUT 58 YEARS,
Location:
HIGH
COURT OF
KARNATAKA
            5 . SMT JAYALAKSHMI
                D/O LATE SHRI MUNISWAMY
                AGED ABOUT 55 YEARS,

               ALL ARE R/AT TUBARAHALLI VILLAGE,
               VARTHUR HOBLI,
               BANGALORE EAST TALUK-560066.
                                                     ...PETITIONERS

            (BY SRI.C.M.NAGABHUSHAN, ADVOCATE FOR
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                                   WP No. 21640 of 2023




     SMT. POONAM.S.PATIL., ADVOCATE)


AND:

1.   STATE OF KARNATAKA
     REPRESENTED BY ITS SECRETARY TO
     URBAN DEVELOPMENT DEPARTMENT,
     VIDHANA SOUDHA
     DR AMBEDKAR ROAD
     BANGALORE-560001.

2.   SPECIAL DEPUTY COMMISSIONER
     BANGALORE URBAN DISTRICT
     BANGALORE-560001.

3.   SPECIAL LAND ACQUISITON OFFICER
     BANGALORE DISTRICT
     VISVESWARAIAH TOWER,
     2ND FLOOR, PODIUM BLOCK
     DR AMBEDKAR ROAD
     BANGALORE -560001.

4.   THE TAHSILDAR
     BANGALORE EAST TALUK
     BANGALORE -560001.

5.   THE BEML EMPLOYEES HOUSE
     BUILDING CO OPERATIVE SOCIETY LTD
     BEML COMPLEX, C V RAMAN NAGAR,
     REPRESENTED BY ITS SECRETARY
                                       ...RESPONDENTS

(BY SMT. B.P.RADHA, AGA FOR R-1 TO R-4;
    SRI. SREEVATSA, SENIOR ADVOCATE FOR
    SRI. B.E.SHREEDHAR, ADVOCATE FOR R-5)

    THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
DECLARING THAT THE ACQUISITION PROCEEDINGS OF THE
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                                        WP No. 21640 of 2023




LANDS BELONGING TO THE PETITIONERS (SY.No.18/2
MEASURING 32 GUNTAS AND SY.No.23/1 MEASURING 22
GUNTAS IN TUBARAHALLI VILLAGE, VARTHUR HOBLI,
BANGALORE SOUTH, BANGALORE) UNDER PRELIMINARY
NOTIFICATION    BEARING    No.LAQ(1)SR4/89-90.  DATED
26/03/1990 VIDE ANNEXURE-A AND FINAL NOTIFICATION
DATED    12/08/1991   BEARING    No.RD188AQB89,  VIDE
ANNEXURE-B ARE DEEMED TO HAVE LAPSED UNDER SECTION
2492) OF THE RIGHT TO FAIR COMPENSATION AND
TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND
RESETTLEMENT ACT, 2013 ACT, ETC.

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR   ORDERS    ON   25.04.2024, COMING  ON   FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING


                           ORDER

1. This petition is filed seeking a declaration that the

acquisition proceedings, in respect of the lands of the

petitioners i.e., Sy.No.18/2 measuring 32 guntas and

Sy.No.23/1 measuring 22 guntas of Tubarahalli village,

Varthur Hobli, Bangalore South Taluk, Bangalore which

were notified under the notification dated 26.03.1990

under Section 4(1) of the Land Acquisition Act, 1894 ("the

1894 Act") and under a declaration dated 12.08.1991

under Section 6(1) of the 1894 Act are deemed to have

lapsed under Section 24(2) of the Right to Fair

Compensation and Transparency in Land Acquisition,

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Rehabilitation and Resettlement Act, 2013, (for short "the

2013 Act").

2. In addition, they are also seeking quashing of the

notifications issued under Sections 4 and 6 of the 1894

Act.

3. The following facts are not in dispute:

4. On 26.03.1990, a notification under Section 4(1)

of the 1894 Act was issued by the State proposing to

acquire 94 acres 34 guntas for the benefit of the BEML

Employees House Building Co-operative Society Limited,

Bengaluru--respondent No.5 herein. In this notification,

the lands bearing Survey No.18/2 measuring 32 guntas

and land bearing Survey No.23/1 measuring 09 guntas

were also notified.

5. On 12.08.1991, a declaration under Section 6 of

the 1894 Act was also issued.

6. In the year 1992, the father of the petitioners--

Muniswamy filed W.P. No.3393 of 1992 challenging the

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Section 4(1) notification dated 26.03.1990 and also the

6(1) declaration dated 12.08.1991. This Court by an order

dated 06.11.1996, however, dismissed said writ petition.

7. It is stated that this order dismissing W.P.

No.3393 of 1992 was not challenged by filing an appeal

and had attained finality.

8. It may be pertinent to state here that a

notification under Section 16(2) was also published on

23.09.1993. The consequence of issuance of the 16(2)

notification, in which possession of the land bearing survey

Nos.18/2 and 23/1 was stated to have been taken on

01.09.1993, is that those lands stood vested in the State

free from all encumbrances and, as a consequence, the

land owners had lost all their rights over them.

9. It may be pertinent to state here that the writ

petition filed by the father of petitioners in W.P. No.3393

of 1992 was dismissed by a common order dated

06.11.1996 wherein a batch of writ petitions were

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dismissed. One of the petitions which were dismissed was

one filed by Yellappa in W.P.No.22034 of 1990.

10. Notwithstanding the dismissal of all the writ

petitions by a common order, Yellappa--the petitioner in

W.P. No.22034 of 1990 had chosen to prefer one more

writ petition in W.P. No.36830 of 2003 and said writ

petition was dismissed by an order dated 20.10.2003 on

the ground that the earlier challenge had failed and it was

not permissible for the petitioner to file a second writ

petition.

11. On 14.09.2001, the Bangalore Development

Authority ("the BDA") had approved a layout plan in

favour of respondent No.5--Society. In this layout plan, it

is stated that the land of the petitioners had not been

included, thereby establishing that the possession had not

been taken.

12. On the strength of the liberty reserved to Yellappa

to approach a Civil Court, on 09.11.2003, the present

petitioners instituted a suit in O.S.No.7881 of 2003

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seeking a declaration that the acquisition proceedings

initiated by issuance of notification under Sections 4 and 6

of the 1894 Act was bad in law and against public policy.

They also sought a declaration that W.P. No.3393 of 1992

had not been filed by them and the same had been

manipulated at the instance of the 5th respondent--

Society.

13. In this suit, the 5th respondent--Society had

entered appearance and also filed a written statement and

also an application to reject the plaint. The Civil Court, by

an order dated 12.12.2007, proceeded to reject the plaint.

It is stated by the 5th respondent that this rejection of the

plaint has also not been challenged and it has thus

attained finality.

14. It is pertinent to state here that on 29.05.2004,

the BDA approved the modified layout plan, and it is

admitted that in this modified layout plan, the lands

claimed by the petitioners were also included.

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15. On 12.04.2005, the 5th respondent--society had

executed a relinquishment deed, in which it is recorded

that Survey Nos.23/1A, 23/1B, 23/1C had been reserved

for a park, was being relinquished by the society. It is also

stated that in survey No.18/2, sites have been formed.

16. It is thus clear that way back in the year 2005,

the Society had relinquished its title in favour of the BDA

in respect of Survey No.23/1.

17. It is also stated by the 5th respondent--Society

that in the year 2006, sale deeds have been executed in

favour of the allottees, and copies of the sale deeds and

the other related documents such as khata certificates and

tax paid receipts have also been produced.

18. Notwithstanding the rejection of the plaint in O.S.

No.7881 of 2003, the petitioners filed W.P.27996 of 2010

seeking issuance of a direction to the State to consider

their request to de-notify the lands, and this Court, by an

order dated 09.02.2012 disposed of said writ petition by

permitting the petitioners to submit their representations.

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19. It is the case of the petitioners that pursuant to

said order, the de-notification committee had decided to

seek a legal opinion regarding the denotification, since

reports suggested that the petitioners were in possession.

It is also stated that on 05.08.2014, a legal opinion was

furnished by the Law Department stating that there is no

scope for withdrawal of the application and, thereafter, the

State sought a report from the Special Land Acquisition

Officer ("the SLAO"), who, in turn, submitted a report

dated 08.07.2016 to the effect that the petitioners were in

possession. It is stated that the State thereafter observed

that the Law Department had not considered the effect of

Section 24(2) of the 2013 Act and the Law Department

had concurred that the acquisition proceedings had lapsed

under Section 24(2) of 2013 Act.

20. On the other hand, the society contends that they

had filed O.S. No.6313 of 2017 seeking a decree of

injunction in respect of Survey No.23/1 which had been

earmarked as a park and also in respect of Survey

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No.18/2 wherein sites have been formed. They also stated

that the 10 allottees, i.e., the members who had been

allotted sites had also filed separate suits along with the

Society and by a judgment and decree dated 07.07.2023,

all the 11 suits i.e., the suit filed by the Society and the

suits filed by the allottees were decreed.

21. From the facts narrated above, it is clear that the

challenge to the acquisition by the father of the petitioners

ended in a dismissal way back in the year 1996 and this

order has attained finality. The subsequent attempt to get

a declaration from the Civil Court by filing O.S. No.7881 of

2003 also stood repelled by the rejection of the plaint.

22. Notwithstanding the above facts, the present writ

petition has been filed on 21.09.2023 seeking a

declaration that the acquisition proceedings have lapsed

by virtue of Section 24(2) of the 2013 Act.

23. The learned counsel appearing for the petitioners

contended that the possession had remained with the

petitioners and, therefore, Section 24(2) would come into

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operation. He also submitted that there no award had

been passed and, on that score also, the acquisition

proceedings are liable to be quashed. He submitted that

the Supreme Court in Indore Development Authority1

has clearly held that if possession of lands were not taken

after five years after 01.01.2014, the proceedings would

be deemed to have lapsed, and since the material on

record including the report of the SLAO indicates that they

were in possession, it was clear that the acquisition

proceedings had lapsed.

24. The learned senior counsel appearing for the

Society, on the other hand, contended that the assertion

that no award had been passed is absolutely false, in view

of the fact that a notification under Section 16(2) of the

1894 Act was issued way back in the year 1993, which, by

itself, indicated that the lands stood vested in the State

free from all encumbrances in the year 1993.

Indore Development Authority v. Manoharlal, 2020 AIR 1496.

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25. The learned senior counsel argued that the Civil

Court had recorded earlier finding that the allottees were

in possession and the Society had formed the layout, while

decreeing the suits filed by the Society and the allottees,

and in light of this finding regarding possession recorded

by the Civil Court, the entire argument of the petitioners

that they were in possession could have been rejected. He

also submitted that the fact that the petitioners sought

denotification, by itself, presupposes that the lands had

been validly acquired and it cannot therefore be permitted

to urge that no award had been passed.

26. In light of the above, the only question that will

have to be decided in this case is as to

Whether the petitioners can seek a declaration that

the acquisition proceeding have lapsed by virtue of

Section 24(2) of the 2013 Act on the ground that

they have continued in possession.

27. As already noticed above, the challenge to the

acquisition stood negated way back in the year 1996 itself

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and this has attained finality. It is also not in dispute that

an attempt to get a declaration that the acquisition was

bad in law and the writ petition filed by the father of the

petitioners were not actually filed by him, but was a result

of manipulation by the Society, has also stood negated by

the rejection of the plaint in O.S. No.7881 of 2003 and this

was way back in the year 2007. As a consequence of this,

it will have to be held that validity of acquisition is no

longer in question and has stood concluded. It would

therefore not be permissible for the petitioners to pout

forth any contention regarding the validity of the

acquisition.

28. It is to be noticed here that the challenge to the

acquisition came to an end way back in the years 1996

and 2007 itself, but yet, this petition has been filed in the

year 2023, i.e., after lapse of 16 years from the date of

rejection of the plaint contending that the acquisition

stood lapsed by virtue of Section 24 (2) of the 2013 Act.

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29. The Apex Court in Indore Development

Authority (supra) has held as follows:

"359. We are of the considered opinion that Section 24 cannot be used to revive dead and stale claims and concluded cases. They cannot be inquired into within the purview of Section 24 of the Act of 2013. The provisions of Section 24 do not invalidate the judgments and orders of the Court, where rights and claims have been lost and negatived. There is no revival of the barred claims by operation of law. Thus, stale and dead claims cannot be permitted to be canvassed on the pretext of enactment of Section 24. In exceptional cases, when in fact, the payment has not been made, but possession has been taken, the remedy lies elsewhere if the case is not covered by the proviso. It is the Court to consider it independently not under section 24(2) of the Act of 2013."

30. As could be seen from the above passage, the

Hon'ble Supreme Court has categorically held that the

decision rendered in Indore Development Authority

(supra) cannot give rise to a new cause of action for

landowners to revive stale claims. Having regard to the

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fact that the challenge to acquisition stood negated in the

year 1996, and in the year 2007, it would not be open for

the petitioners to place reliance on Indore Development

Authority (supra) to contend that the acquisition had

lapsed.