Karnataka High Court
B.T.Jayashankar vs State Of Karnataka on 23 November, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
WRIT PETITION NO.40514 OF 2015 (LA-BDA)
BETWEEN:
1. B.T. JAYASHANKAR
SINCE DECEASED REP. BY LRS.
1(a). REKHA
W/O B.T. JAYASHANKAR
AGED ABOUT 66 YEARS
R/AT NO.704, 12TH MIAN,
12TH CROSS, 4TH STAGE
T.K. LAYOUT,
MYSURU-570 009.
1(b). ATHRESH
S/O B.T. JAYASHANKAR
AGED ABOUT 36 YEARS
R/AT NO.704, 12TH MIAN,
12TH CROSS, 4TH STAGE
T.K. LAYOUT,
Digitally signed by
SHARMA ANAND MYSURU-570 009.
CHAYA
Location: High 1(c). JYOTHI LAKSHMI
Court of Karnataka
D/O B.T. JAYASHANKAR
AGED ABOUT 41 YEARS
R/AT NO.215, 12TH MAIN,
2ND CROSS, SARASWATHIPURAM,
MYSURU - 570 009.
2. UMA VENKATARAM
D/O LATE B.S.THANDAVA MURTHY
AGED ABOUT 65 YEARS
R/AT NO.2265/40,
VINOBHA ROAD,
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JAYALAKSHMIPURAM,
OPP. BHOODEVI FARM,
MYSURU- 570 012.
3. SUJATHA PRABHAKAR
D/O LATE B.S. THANDVA MURTHY
AGED ABOUT 63 YEARS
R/AT NO.955, APT. NO.104,
BRIGADE HABITATE,
DEEVANS ROAD,
LAKSHMIPURAM,
MYSURU - 570 004.
4. VIMALA RAMESH
D/O LATE B.S. THANDAVA MURTHY,
AGED ABOUT 58 YEARS
R/AT NO.1421, OF 3 SUNRISE
APPARTMENT
KRISHNAMURTHYPURAM
7TH CROSS, OPP. VANITHA SADAN
MYSURU - 570 004.
5. SUMITHRA KSHETRAPAL
W/O KSHETRAPAL
DAUGHTER IN LAW OF
LATE B.S. THANDAVA MURTHY
AGED ABOUT 56 YEARS
R/AT NO.323, 12TH CROSS
5TH MAIN, JAYANAGAR,
MYSURU - 570 004.
...PETITIONERS
(BY SRI. GANAPATI BHAT VAJRALLI, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY ITS SECRETARY,
DEPARTMENT OF URBAN DEVELOPMENT,
M.S. BUILDING,
BENGALURU - 560 001.
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2. MYSORE URBAN DEVELOPMENT AUTHORITY,
JLB ROAD, K.G. KOPPAL,
CHAMARAJAPURAM MOHALLA,
MYSURU - 570 005.
REPRESENTED BY ITS COMMISSIONER.
3. THE ADDITIONAL LAND ACQUISITION OFFICER,
MYSORE URBAN DEVELOPMENT AUTHORITY,
JLB ROAD, K.G. KOPPAL,
CHAMARAJAPURAM MOHALLA,
MYSURU - 570 005.
...RESPONDENTS
(BY SRI. RAVINDRANATH B., AGA FOR R1;
SRI. PRASANNA B.R., ADVOCATE FOR R2:
SRI. S.V. DESAI, ADVOCATE FOR R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE THE PRELIMINARY NOTIFICATION NO.PRABHU.
SWA.3/91-92 DATED 17.01.1992 VIDE ANNEXURE-A AND
FINAL NOTIFICATION NO.PRABHU.SWA.3/91-92 DATED
20.01.1993 VIDE ANNEXURE - B AS LAPSED UNDER SECTION
27 OF KUDA ACT; AND ETC.
THIS WRIT PETITION HAVING BEEN RESERVED FOR
ORDERS, COMING FOR PRONOUNCEMENT THIS DAY,
E.S. INDIRESH J., MADE THE FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH:
CAV ORDER
(PER: HON'BLE MR. JUSTICE E.S.INDIRESH)
1. In this writ petition, petitioners are assailing the
Preliminary Notification dated 17.01.1992 (Annexure-A) and
Final Notification dated 20.01.1993 (Annexure-B) as lapsed as
per Section 27 of the Karnataka Urban Development Authorities
Act, 1987 (hereinafter referred to as 'the Act').
2. The relevant facts for adjudication of this writ petition are
that the petitioners claim to be children of late B.S. Tandava
Murthy. It is stated that the said B.S. Tandava Murthy has
purchased 14 acres 5 guntas in Sy. No.305 of Hinkal Village,
Mysuru Taluk, as per the registered Sale Deed dated
26.03.1958 and after the demise of Sri. B.S. Tandava Murthy
during 1961, petitioners have sold an extent of 6 acres out of
14 acres 5 guntas and retained 8 acres 5 guntas in Sy.No.305
of Hinakal Village. It is further stated in the writ petition that
the land bearing Sy.No.305 measuring 19 acres 10 guntas was
notified for acquisition by the respondent - authorities as per
Preliminary Notification dated 17.01.1992 and the khatedars of
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the land was shown as family of B.S. Tandava Murthy
(Kamalamma, Sannegowda, son of Kavalu Honnegowda,
Channa Mayiga Gowda, son of Mayiga Gowda and U.
Madegowda). The respondent - authorities have passed Final
Notification on 20.01.1993 (Annexure-B) and thereafter issued
the Notification dated 12.01.2001 (Annexure-E) under Section
16(2) of the Land Acquisition Act, in so far as an extent of 8
acres 5 guntas of land in Sy.No.305. It is further stated in the
writ petition that the petition schedule property to an extent of
8 acres 5 guntas is a garden land and the petitioners are in
possession of the same and therefore, it is the contention of
the petitioners that as the respondent - authorities have not
taken possession of the petition schedule property and as no
award has been passed by the respondent - authorities, and
accordingly, the petitioners have presented this Writ Petition.
3. I have heard Sri. Ganapathi Bhat, learned counsel
appearing for the petitioners, Sri. Ravindranath B., learned
Additional Government Advocate appearing for respondent
No.1, Sri. Prasanna B.R., learned counsel appearing for the
respondent No.2 and Sri. S.V. Desai, learned counsel appearing
for the respondent No.3.
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4. Sri. Ganapathi Bhat, learned counsel appearing for the
petitioners contended that, the petition schedule property
though acquired as per the impugned Notifications, however,
no possession was taken in respect of 8 acres 5 guntas out of
19 acres 10 guntas and therefore, it is contended that, no
notice has been issued, nor survey has been conducted, nor
mahazar has been drawn and further he contends that,
arecanut plantation is made in the petition schedule property
and as such, referring to Section 15 to 18 of the Act, learned
counsel for the petitioners contended that, as no award has
been passed nor possession has been taken in respect of the
petition schedule property and further no compensation has
been deposited before the Civil Court in respect of the petition
schedule property, and therefore, sought for quashing the
impugned Notifications in respect of the subject land. He
further contended that, though the award notice said to have
been issued under Section 12(2) of the Act, however, the said
notice has not been served to the petitioners and therefore,
sought for interference of this Court. It is also contended by the
learned counsel by referring to the total extent of land in
Sy.No.305 as 19 acres, however, Award came to be passed to
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an extent of 8 acres and 5 guntas, and therefore, submitted
that the exclusion of remaining land is arbitrary and further the
respondent - authorities have not followed the mandatory
requirement as per Section 15 and 18 of the Act. He further
submitted that, as possession has not been taken and as such,
the acquisition proceedings has lapsed under Section 27 of the
Act and as per Section 24(2) of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. In order to buttress his arguments,
learned counsel appearing for the petitioners places reliance on
the Judgment of the Hon'ble Supreme Court in the case of
LAJJA RAM AND OTHERS Vs. UNION TERRITORY, CHANDIGARH
AND OTHERS reported in (2013) 11 SCC 235; in the case of
RAGHBIR SINGH SEHRAWAT Vs. STATE OF HARYANA AND
OTHERS reported in (2012) 1 SCC 792; in the case of BONDU
RAMASWAMY Vs. BANGALORE DEVELOPMENT AUTHORITY
reported in (2010) 7 SCC 129 and the decision of this Court in
the case of CHIKKABORAIAH Vs. STATE OF KARNATAKA AND
OTHERS reported in ILR 2003 KAR 3667 and contended that, as
the respondent - authorities failed to take possession of the
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petition schedule property for more than three decades and as
such, sought for quashing the impugned Notifications.
5. Per contra, Sri. B.R. Prasanna, learned counsel appearing
for the respondent No.2, contended that the compensation has
been determined and same is deposited before the competent
Court in LAC No.375/2000 (as per Annexure-R1) and he further
contended that, the possession of the land in question was
taken on 27.03.2000 and that the respondent - authorities
have passed Award on 27.01.1994 and therefore, sought for
dismissal of the Petition.
6. It is also contended by the learned counsel appearing for
the respondent that, the petitioners have approached the
Government for dropping the acquisition proceedings in respect
of the petition schedule property and in this regard -
respondent - MUDA addressed letter dated 03.08.2007
(Annexure- R2) and this Court in W.P. No.26609/2005 disposed
of on 27.06.2007, upheld the impugned Notification and
therefore, sought for dismissal of the petition. It is also the
submission made by the learned counsel appearing for the
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respondent that, the Writ Petition is liable to be dismissed on
the ground of delay and laches.
7. In the light of the submissions made by the learned
counsel appearing for the parties, it is not in dispute that the
father of the petitioners - B.S. Tandava Murthy was owner in
possession of the land bearing Sy.No.305 of Hinakal Village, to
an extent of 14 acres 5 guntas and after the demise of
Sri.B.S.Tandava Murthy, the petitioners have sold an extent of
6 acre out of 14 acres 5 guntas. It is further forthcoming from
the writ petition that the respondent - authority has issued
Preliminary Notification on 17.01.1992 (Annexure-A) under
Section 17 of the Act and Serial No.32 of the said Notification
stipulates that the entire extent of 19 acres 10 guntas was
notified for acquisition. It is also to be noted that the
respondent - authority has passed Final Notification dated
20.01.1993 (Annexure-B), wherein entire extent of 19 acres 10
guntas was notified for acquisition. It is also forthcoming from
the writ petition that the respondent - authorities have issued
Notification dated 12.01.2001 (Annexure-E), wherein an extent
of 8.05 acres has been taken possession pursuant to the
aforementioned Notifications. Nothing is forthcoming from the
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statement of objections with regard to leaving out the
remaining extent of land in Sy.No.305 of Hinakal Village.
Perusal of the Award notice dated 10.12.2012 issued under
Section 12(2) of the Land Acquisition Act, would indicate that
acquisition is made only to an extent of 8 acres 5 guntas. The
RTC extracts produced by the petitioners would indicate that
name of Smt. Kamalamma has been shown as Anubhavadar.
8. It is also pertinent to mention here that, though the
respondents have contended that, the possession has been
taken by the respondent - authorities, however, perusal of the
photographs would indicate that, arecanut plantation has been
made in the subject land and on the other hand, no mahazar
has been produced by the respondents with regard to taking
possession of the land in question. It is also to be noted that
name of the mother of the petitioners is continued in the RTC
extracts and further it is to be noted that, the petitioners were
unaware about the proceedings in LAC No.375/2000. Perusal of
the LAC No.375/2000 (Annexure-R1) makes it clear that none
represented the petitioners in the Reference Court. Though it
is stated that the identical Notification has been upheld by this
Court in W.P.No.26609/2005, however, the respondent - MUDA
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has failed to produce relevant document to establish that they
have possession of the land in question and abandoned the
scheme in so far as the subject land is concerned. At this
juncture, it is relevant to cite the Judgment of this Court in the
case of CHIKKABORAIAH (supra) wherein, paragraph Nos.2 to
5 reads as under:
" 2. Section 27 of the Karnataka Urban Development
Authorities Act reads as follows:
"27. Authority to execute the scheme within
five years.--Where within a period of five years
from the date of publication in the Official
Gazette of the declaration under Sub-section
(1) of Section 19, the Authority fails to execute
the scheme substantially, the scheme shall
lapse and the provisions of Section 36 shall
become inoperative".
By reading of the above said section, it is clear that
the scheme that has been framed by the Authority is
required to be executed substantially within five
years from the date of the notification issued
under Section 19(1) of the Act. As stated earlier a
notification under Section 19 was issued on 25-6-
1988. If that is so, even though the State
Government has acquired large extent of land
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including the land of the petitioner for the purpose of
executing the scheme framed by it, the State
Government ought to have taken possession
immediately after the issuance of the notification
under Section 19(1) of the Act for the purpose of
execution of the scheme. In the instant case, for a
period of more than 13 years, the Government or the
Authority has not taken any steps to take possession
of the land in question. From this, it is seen that
every landowner reasonably believed that the
Authorities are not interested in taking possession of
the land for the purpose of executing the scheme.
Even otherwise, when the notification issued
under Section 19(1) is of the year 1988 at least, the
State Government would have taken possession of
the land of the petitioner within five years along with
the other lands and would have taken steps to
execute the scheme. In the instant case, as the State
Government had not taken steps to take possession
for a period of 14 years from the date of the final
notification, I am of the view that so far as the land
of the petitioner is concerned, the acquisition
proceedings had lapsed.
3. Sri H.C. Shivaramu, learned Counsel appearing for
the respondent relied upon the decision in the case
of Kanthamma and Anr. v. State of Karnataka and
Anr.,1984(2) Kar. L.J. 271 (DB) : ILR 1984
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Kar. 1494 (DB) and the decision of the Division
Bench in the case of M.B. Rarnachandran v. State of
Karnataka and Ors., 1991(3) Kar. L.J. 48 (DB) : ILR
1992 Kar. 174 (DB) and submitted that if the
Authority has taken steps to execute the scheme,
within five years from the date of the final
notification, that itself is sufficient to hold that there
is substantial execution of the scheme and therefore,
there is no lapse of acquisition proceedings. In the
above said two decisions, it is held that for the
scheme to lapse, there must be proof regarding the
failure on the part of the Authority to execute the
scheme substantially within five years from the date
of the publication of notification under Section
19(1) of the Act in the Official Gazette. The Division
Bench has also held that the B.D.A. could execute
the scheme only after the possession has been
obtained and the possession could be obtained only
after the award is passed. In the instant case, the
award was passed on 11-1-1989 and there is no
order preventing the 2nd respondent or the State
Government from taking possession of the land from
the landowner. The very object of
introducing Section 27 of the Act is to execute the
scheme immediately after the publication of final
notification. In the instant case, though the award is
of the year 1989, possession has not been taken for
over a period of more than 13 years. From this, it is
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seen that there is negligence and dereliction of duty
on the part of the officers of the State Government
and the Authority. Further, when they have not
taken any steps to take possession within five years
from the date of the final notification, it can be
reasonably presumed that the Authority does not
require the land in question for the purpose of
execution of the scheme. Therefore, in my opinion,
the above said decisions are of no assistance to the
respondents as there is an unreasonable delay on the
part of the respondents in taking possession of the
land from the landowners.
4. I can also take judicial notice of the fact that the
land value, as on the date of taking possession, has
increased so much and it would be much more than
the interest which would have been earned if the
amount of compensation awarded to the petitioner
had been deposited in the Nationalized Bank.
Therefore, in view of the unreasonable delay on the
part of the respondents in taking possession, I hold
that insofar as the petitioner's land is concerned, the
acquisition proceedings had lapsed.
5. Sri Shivaramu, learned Counsel appearing for the
respondent submitted that the petition is liable to be
dismissed on the ground of delay and laches.
According to him, the final notification is of the year
1988, the award is of the year 1989 and the award
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notice was served on the petitioner in the year 1991
whereas this writ petition is filed in the year 2002
and therefore, this petition is liable to be dismissed
on the ground of delay and laches. The petitioner is
not aggrieved of the notifications issued
under Sections 17(1) and 19(1) of the Act. In fact,
the petitioner himself had written a letter to the
Authorities to take possession of the land and to pay
compensation immediately after the passing of the
award. But, in respect of this letter, the 2nd
respondent has not taken any steps to take
possession of the land for over more than thirteen
years from the date of passing of the award. It is
only this unreasonable delay on the part of the
respondent in taking possession has made the
petitioner to come to this Court for a declaration that
the acquisition proceedings have lapsed on the
ground that there is no execution of the scheme so
far as the land of the petitioner is concerned.
Therefore, there is no delay at all in filing this writ
petition by the petitioner immediately after taking
possession of the land by the respondents and
therefore, this writ petition cannot be thrown out on
the ground of delay and laches. In the result, I pass
the following order:
Writ petition is allowed declaring that the
acquisition proceedings, initiated pursuant to
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Annexure-C insofar as the land of the petitioner
is concerned, had lapsed.
"
9. Perusal of the writ papers would indicate that, the
respondents have not properly placed the material with regard
to conducting survey and mahazar said to have been made in
so far as the land in question and therefore, in the absence of
the same, the respondent - authorities have committed an
error and same is contrary to the declaration of law made by
the Hon'ble Supreme Court in the case of BONDU RAMASWAMY
Vs. BANGALORE DEVELOPMENT AUTHORITY reported in (2010)
7 SCC 129. At this juncture, it is relevant to cite the Judgment
of the Division Bench of this Court in the case of BANGALORE
DEVELOPMENT AUTHORITY Vs. STATE OF KARNATAKA AND
OTHERS reported in ILR 2018 KAR 2144 wherein, paragraph
Nos.4 to 10 reads as under:
"4. Indeed it is pointed out by Sri.N.K.Ramesh,
Learned Counsel for the respondents that the land
in question measuring 1 acre 26 guntas was
excluded while passing the award in respect of
other lands on the ground that there was structure
in existence and as such possession had not been
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taken over. As can be seen from Annexure-'E'
produced along with the writ petition, there is an
entry of supplementary proceedings thereof taken
by CITB, Bangalore on 10.10.1973. This stands
testimony to the fact that neither possession of the
land was taken nor any award passed. It also shows
that certain structures had been erected in the land
in question. It thus follows that neither CITB nor
Special Deputy Commissioner, BDA, Bangalore has
proceeded with the acquisition proceedings and
completed the same by passing award, taking over
possession and paying compensation. Hence, in
respect of the land in question, acquisition has been
abandoned by the beneficiaries/CITB and BDA.
5. It is no longer res-integra that power conferred
on any authority be exercised reasonably and
reasonable exercise of power includes exercise of
the same within a reasonable period. An acquisition
proceeding once initiated has to be completed by
passing an award and paying compensation followed
by taking over possession within a reasonable
period. This has to be strictly followed even in the
absence of any statutory limit prescribed for passing
of award and completing the acquisition
proceedings. In this regard, reliance can be placed
on the judgment in the case of RAMCHAND
& OTHERS vs. UNION OF INDIA & OTHERS
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(1994(1)SCC 44). The Apex Court has laid down in
para 14 as under:
"14. The Parliament has recognised and taken
note of the inaction and non-exercise of the
statutory power on the part of the authorities,
enjoined by the provisions of the Act to
complete the acquisition proceedings within a
reasonable time and because of that now a
time-limit has been fixed for making of the
award, failing which the entire proceeding for
acquisition shall lapse. But, can it be said that
before the introduction of the aforesaid
amendment in the Act, the authorities were at
liberty to proceed with the acquisition
proceedings, irrespective of any schedule or
time-frame and to complete the same as and
when they desired? It is settled that in a
statute where for exercise of power no time-
limit is fixed, it has to be exercised within a
time which can be held to be reasonable. ..."
6. In the case of TUKARAM KANA JOSHI & OTHERS
THROUGH POWER OF ATTORNEY HOLDER vs. M.I.
D.C. AND OTHERS (AIR 2013 SC 565), the Apex
Court has, while dealing with the issue of legal
obligation on the part of the authorities to complete
such acquisition proceedings and to make payment
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of requisite compensation has observed in paras 17
& 18 as follows:
"17. The appellants have been seriously
discriminated against qua other persons,
whose land was also acquired. Some of them
were given the benefits of acquisition,
including compensation in the year 1966.
This kind of discrimination not only breeds
corruption, but also dis-respect for
governance, as it leads to frustration and to a
certain extent, forces persons to take the law
into their own hands. The findings of the High
Court, that requisite records were not
available, or that the appellants approached
the authorities at a belated stage are contrary
to the evidence available on record and thus,
cannot be accepted and excused as it remains
a slur on the system of governance and
justice alike, and an anathema to the doctrine
of equality, which is the soul of our
Constitution. Even under valid acquisition
proceedings, there is a legal obligation on the
part of the authorities to complete such
acquisition proceedings at the earliest, and to
make payment of requisite compensation. The
appeals etc. are required to be decided
expeditiously, for the sole reason that, if a
person is not paid compensation in time, he
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will be unable to purchase any land or other
immovable property, for the amount of
compensation that is likely to be paid to him
at a belated stage.
18. While dealing with the similar issue, this Court in
K. Krishna Reddy & Ors. v. The Special Dy. Collector,
Land Acquisition Unit II, LMD Karimnagar, Andhra
Pradesh, AIR 1988 SC 2123, held as under:
"....After all money is what money buys. What
the claimants could have bought with the
compensation in 1977 cannot do in 1988.
Perhaps, not even one half of it. It is a
common experience that the purchasing power
of rupee is dwindling. With rising inflation, the
delayed payment may lose all charm and
utility of the compensation. In some cases, the
delay may be detrimental to the interests of
claimants. The Indian agriculturists generally
have no avocation. They totally depend upon
land. If uprooted, they will find themselves
nowhere. They are left high and dry. They
have no savings to draw. They have nothing to
fall back upon. They know no other work. They
may even face starvation unless rehabilitated.
In all such cases, it is of utmost importance
that the award should be made without delay.
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The enhanced compensation must be
determined without loss of time...."
7. Similarly, a Division Bench of this Court in the
case of SRI.H.N SHIVANNA AND OTHERS vs. THE
STATE OF KARNATAKA AND ANOTHER [(2013 (4)
KCCR 2793 (DB)], has held as follows:
"39 .............As held by the Apex Court in Ram
Chand's case, two years is held to be a
reasonable time within which a final
declaration has to be issued, if there are no
hurdles placed in the acquisition by the land
owners or if there are no hurdles in
law. ........................ Even in the absence of any
such prescriptions expressly under the statute,
having regard to the fact that the right to
property is a constitutional right and the
person whose land is sought to be acquired is
entitled to compensation at the market rate,
such a compensation has to be paid to him at
the earliest and therefore, the power of
acquisition should be exercised within a
reasonable time so that the person who lost
the land is duly compensated at the earliest
point of time."
8. In the present cases, though final notification was
issued in the year 1971 so far, neither award has
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been passed nor possession has been taken over by
paying compensation. Therefore, the acquiring body
has neither exercised its powers in a reasonable
manner nor has it completed the acquisition
proceeding within a reasonable period.
Hence, acquisition having been abandoned stands
lapsed on account of omission and commission on
the part of the CITB/BDA in respect of writ
petitioners/respondents' herein in so far as the land
is concerned.
9. At this stage, as rightly contended by
Sri.Kannur G S, Learned Counsel appearing for
BDA, the observations made and finding
recorded by the Learned Single Judge stating
that acquisition proceedings stood lapsed on
account of the provisions contained in Section
24(2) of Central Act 30/2013 or for that
matter, the Scheme had lapsed in light of the
provisions contained under the BDA Act are
larger issues which may have to be decided in
appropriate case and hence, they have to be
kept open. We agree with the contention of
Sri.Kannur G S, in this regard. These legal
questions are kept open to be decided in
appropriate proceedings. Hence, the question
of law regarding applicability of Section 24 of
Central Act 30 of 2013 to the acquisition made
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under the BDA Act is kept open to be decided
in an appropriate case.
10. It is also brought to our notice that in
respect of the abutting land which is part of
the same survey number acquired for the
same purpose under the same notification by
the BDA, the owner of the said land had filed
W.P.Nos.3596-97/2014. The said writ petitions
were allowed on 26-02-2014 declaring that
the land having not been utilized for the
purpose for which it was acquired and since no
award had been passed, the acquisition
proceedings could not be permitted to be
pursued. Admittedly, no appeal is filed against
the said order passed in respect of the land
which is situated immediately abutting the
land in question. Indeed the proceedings
maintained by BDA produced at Annexure-T
discloses that a conscious decision was taken
by the BDA not to prefer any appeal keeping
in mind various facts such as non passing of
award, not taking over possession of land and
existence of structure thereon."
10. It is also relevant to cite the Judgment of this Court in the
case of MRS. POORNIMA GIRISH Vs. REVENUE DEPARTMENT
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reported in ILR 2011 KAR 574, wherein, paragraph Nos.4 and 5
reads as under:
" 4. If such is the factual position, the acquisition
proceedings insofar as the petitioner is concerned
has become stale and inconclusive, not having taken
possession of the subject property, though Notified
for acquisition under the provisions of the Bangalore
Development Authority Act, 1976 [for short 'the
Act']. Automatically, the notifications issued fort the
purpose of acquiring the lands will not enure to the
benefit of the Authority insofar as this particular
parcel of land is concerned as it is now conceded that
the Authority has not taken possession but has
allowed the petitioner to remain in possession so
far.
5. It is the duty of this Court to protect interest of
the citizens from being subjected to harassment by
the arbitrary and whimsical exercise of power by
public authorities. It was definitely open to the
Authority to have saved the situation even in terms
of the order that had come to be passed by this
Court earlier in writ petition No.16133 of 2004 and
connected matters disposed of on 6.6.2006 by
offering the petitioner any alternative solution. "
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11. It is also relevant to cite the Judgment of this Court in the
case of D.V. LAKSHMAN RAO Vs. STATE OF KARNATAKA
reported in ILR 2001 KAR 638, wherein, this Court has held
that the unexplained delay in passing the Award is contrary to
law and therefore, the impugned Notifications require to be
quashed.
12. It is also pertinent to mention here that, even after more
than three decades, petitioner is in possession of the schedule
land from the date of issuance of the Preliminary Notification
and therefore, in view of the declaration of law made by the
Hon'ble Supreme Court in the case of VIDYA DEVI Vs. STATE
OF HIMACHAL PRADESH AND OTHERS reported in (2020) 2
SCC 569, wherein it is held that the right to property is a
human right and no person shall be deprived of his property
save by authority of or procedure established by law. In the
said Judgment it is stated that delay and laches cannot be
raised in a case of continuing cause of action and therefore, the
arguments advanced by the learned counsel for respondent-
MUDA cannot be accepted with regard to the delay in
challenging the impugned Notifications. It is also apt to
consider the declaration of law made by Hon'ble Supreme Court
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in the case of PATASI DEVI vs. STATE OF HARYANA AND
OTHERS reported in (2012)9 SCC 503, at paragraph 8, held as
follows:
" 8. In Banda Development Authority, Banda v. Moti
Lal Agarwal [(2011) 5 SCC 394], this Court
considered as to what should be the mode of taking
possession of the land acquired under the Act,
referred to the judgments in Balwant Narayan
Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700],
Balmokand Khatri Educational and Industrial Trust
v. State of Punjab [(1996) 4 SCC 212] , P.K.
Kalburqi v. State of Karnataka [(2005) 12 SCC 489],
NTPC Ltd. v. Mahesh Dutta [(2009) 8 SCC 339], Sita
Ram Bhandar Society v. Govt. of NCT of
Delhi [(2009) 10 SCC 501], Brij Pal Bhargava v.
State of UP (2011)5 SCC 413 and culled out the
following principles:
"i) No hard and fast rule can be laid down as
to what act would constitute taking of
possession of the acquired land.
ii) If the acquired land is vacant, the act of the
concerned State authority to go to the spot
and prepare a panchnama will ordinarily be
treated as sufficient to constitute taking of
possession.
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iii) If crop is standing on the acquired land or
building/structure exists, mere going on the
spot by the concerned authority will, by itself,
be not sufficient for taking possession.
Ordinarily, in such cases, the concerned
authority will have to give notice to the
occupier of the building/structure or the
person who has cultivated the land and take
possession in the presence of independent
witnesses and get their signatures on the
panchnama. Of course, refusal of the owner of
the land or building/structure may not lead to
an inference that the possession of the
acquired land has not been taken.
iv) If the acquisition is of a large tract of land,
it may not be possible for the
acquiring/designated authority to take physical
possession of each and every parcel of the
land and it will be sufficient that symbolic
possession is taken by preparing appropriate
document in the presence of independent
witnesses and getting their signatures on such
document.
v) If beneficiary of the acquisition is an
agency/instrumentality of the State and 80%
of the total compensation is deposited in
terms of Section 17(3A) and substantial
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portion of the acquired land has been utilised
in furtherance of the particular public purpose,
then the Court may reasonably presume that
possession of the acquired land has been
taken."
In the above case, Hon'ble Supreme Court has quashed
the award made by the respondent-Authorities on the sole
ground that the possession of the land in question was with the
owner of the land and possession was not taken by the
respondent-Authorities and no document was produced,
evidencing the dispossession of the owner of the land acquired
therein.
13. In the light of the aforementioned aspects, taking into
consideration that the petitioners are in possession of the
schedule land and the respondents have not produced any
material to show that possession has been taken in furtherance
of issuance of the impugned Notifications, I find force in the
submission made by the learned counsel appearing for the
petitioners. That apart, the respondents have not produced
any material showing that they have taken steps to implement
the scheme in respect of the schedule land and as such, as
there is no process of implementing the scheme for more than
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three decades, the Writ Petition has to be accepted.
Accordingly, the Writ Petition is liable to be allowed as the
action of the respondents is contrary to Section 27 of the Act.
14. In the result, I pass the following:
ORDER
(i) Writ Petition is allowed.
(ii) Preliminary Notification dated 17.01.1992
(Annexure-A) and Final Notification dated 20.01.1993
(Annexure-B) passed by the respondent - authorities is
contrary to Section 27 of the Act and accordingly, the
acquisition proceedings have lapsed in so far as the petition
schedule property is concerned.
SD/-
(E.S.INDIRESH)
JUDGE
sac
