(BY SMT. N. ANITHA, AGA FOR R1;
SRI. ROHAN HOSMATH, ADVOCATE FOR R2)
THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED
ORDER DATED 29.03.2016 PASSED BY THE LEARNED SINGLE
JUDGE IN WP No.38981/2014 BY DISMISSING THE WRIT
PETITION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
K.V. ARAVIND, J., DELIVERED THE FOLLOWING:-
2. The instant writ appeal is filed under Section 4 of the
order dated 29.03.2016 passed in W.P. No.38981/2014.
3. Respondent No.2 herein has pleaded that he is the
No.21/1B of Hulimavu Village, Bengaluru South Taluk.
namely, Byrasandra-Tavarekere-Madivala VI Stage. A
Arakere. A final notification under Section 19 of the BDA Act
physical possession of the land till date. It is further pleaded
land is concerned. It is also pleaded that, in view of the coming
possession taken, the acquisition has lapsed.
the satisfaction of the Court. It was further concluded that the
light of Section 24(2) of the 2013 Act. Accordingly, the
4. Sri G. Lakshmeesh Rao, learned counsel for the appellant
and the final notification on 28.07.1990. The learned counsel
the Civil Court. It was further submitted that a Notification
Government. Subsequently, the development plan was
eligible beneficiaries. Hence, the learned counsel submitted that
notifications having lapsed does not arise.
Act. It was further submitted that once a notification under
scheme. The learned counsel also submitted that, prior to the
respondent No.2 and on the previous anubhavdar.
4.2. The learned counsel, in support of his submissions, relied
(v) V.T Krishnamoorthy vs. State of Karnataka ILR
1991 Kar. 1183.
5. Sri Rohan Hosmath, learned counsel for respondent No.2,
submitted that the land in question forms part of Hulimavu
Village. It was submitted that the appellant had issued a
preliminary notification dated 08.09.1987 in respect of an
extent of 524 acres 09 guntas, and a final notification was
issued only in respect of 388 acres 09 guntas. It was further
submitted that the layout was formed only to an extent of 31
acres 02 guntas.
5.1 The learned counsel further submitted that though the
award was passed on 18.10.1993, the award notice was issued
to one Jayaramappa and not to the present respondent. It was
further submitted that, though the appellant claims to have
taken possession of the property under Section 16(2) of the
Land Acquisition Act, the mahazar said to have been drawn for
taking physical possession is not substantiated, and respondent
No.2 continues to remain in physical possession of the property
even till date.
5.2 The learned counsel also submitted that unless
possession is actually taken and the same is established to the
satisfaction of the Court, the property will not vest with the
Government merely on the issuance of a notification under
Section 16(2) of the Land Acquisition Act. The learned counsel
further submitted that there has been substantial failure in the
implementation of the scheme, considering the total extent of
the layout formed vis-à-vis the total extent of land notified
under the preliminary and final notifications.
5.3 The learned counsel further submitted that, as the factum
of passing of the award or taking of actual physical possession
has not been demonstrated, the entire acquisition stands
lapsed under Section 24(2) of the 2013 Act.
5.4 The learned counsel further submitted that a series of
writ petitions were filed challenging the acquisition forming part
of the very same notifications in question, and those writ
petitions were allowed by quashing the acquisition. The said
orders have attained finality up to the Hon'ble Supreme Court.
It was further submitted that the BDA had unsuccessfully
carried the said orders in appeal before the Division Bench of
this Court as well as before the Hon'ble Supreme Court.
5.5 The learned counsel further submitted that the acquisition
deserves to be quashed on the ground of parity. It was further
submitted that the land in question is in no way connected with
the layout formed in an extent of 31 acres 02 guntas. The said
land has remained as an isolated parcel and cannot be utilised
for the purpose of the scheme for which it was notified for
acquisition. It was also submitted that the witnesses to the
mahazar are not identifiable.
5.6 Lastly, the learned counsel submitted that the filing of a
reference under Section 18(3) of the LA Act would not take
away the right to challenge the acquisition if, subsequently,
either the scheme or the acquisition has lapsed. The learned
counsel also submitted that the compensation paid can always
be directed to be refunded.
5.7 In support of his submissions, learned counsel relies on
the judgments in the case of Bangalore Development
Authority vs. State of Karnataka and another4 and
Honnappa vs. State of Karnataka and others5 and
Bangalore Development Authority and another vs. Sri
Honnappa and another6.
6. We have considered the submissions of learned counsel
for the parties and perused the appeal papers.
WA No.4718/2016 (LA-BDA), dated 21.06.2021.
WP No.55991/2015 (LA-BDA), dated 18.09.2017.
WA No.6936/2017 (LA-BDA), dated 16.08.2018.
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Analysis
7. Respondent No.2 has claimed ownership of land bearing
Sy. No. 21/1B, measuring 28 guntas, situated at Hulimavu
Village, Bengaluru South Taluk. A preliminary notification under
Section 17 of the BDA Act was issued, and thereafter, a final
notification under Section 19 of the BDA Act was issued on
28.07.1990. The said notifications are produced at Annexures-
A and B. In the notification issued under Section 17,
respondent No.2 was shown as kathedar / anubhavdar.
Similarly, in the notification issued under Section 19,
respondent No.1 was shown as kathedar / anubhavdar.
8. The grievance of respondent No.2 is two fold. Firstly,
respondent No.2 was not issued any notice prior to the passing
of the award. Secondly, possession of the land was not taken.
The filing of reference application seeking enhancement of
compensation, itself shall not prove issue of notice before
passing of award or possession taken.
9. The learned counsel for the appellant produced the
records to support his submission that notice had been issued.
However, as could be seen from the carbon copy of the notice,
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the same is addressed to H. R. Jayaramappa, who appears to
be the previous kathedar. The learned counsel for the BDA
invited the attention of this Court to the xerox copy of the
notice said to have been issued to respondent No.2. On a bare
perusal, it is evident that the name of respondent No.2 has
been inserted by deleting the name of H. R. Jayaramappa.
Though the first pages of both notices are different, the second
pages are identical except for the change in the name. Except
for the name and address of respondent No.2, identical
endorsements are found on page No.2 of both notices, which
appear to be xerox copies.
10. Having perused the records, we find it unsafe to hold that
the award notice was issued to respondent No.2. In the
absence of the original notice or any other corroborative
evidence, we are constrained to hold that the issuance of the
award notice is not established. Be that as it may, respondent
No.2 had preferred an application under Section 18 of the LA
Act seeking enhancement of compensation before the
Reference Court. This clearly indicates that respondent No.2
was aware of the passing of the award.
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11. Section 16 of the LA Act reads as under;
"16. Power to take possession
When the Collector has made an award under
section 11, he may take possession of the land, which
shall thereupon [vest absolutely in the [Government]
free from all encumbrances."
12. The land vests absolutely with the Government, free from
all encumbrances, after possession of the land is taken. The
appellant - BDA claims that, along with the award notice dated
26.10.1993, a notice to handover possession of the land dated
16.11.1993 was also issued. When the noticee failed to hand
over possession, the same was stated to have been taken on
16.11.1993 in the presence of mahazar witnesses. Respondent
No.2 has disputed the service of the award notice dated
26.10.1993 as well as the correctness of the mahazar notice
dated 16.11.1993. As the original records were made available
to the Court by the learned counsel for the appellant, we have
perused the mahazar notice. On such perusal, we have noticed
certain irregularities and peculiarities, which are required to be
stated herein.
13. On perusal of the mahazar, it is seen that it records the
details of the property and the measurements made, and is
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signed by the Revenue Inspector, which is further endorsed by
the Surveyor. It is also recorded that, on the same day,
possession of the land was handed over to the appellant. The
mahazar contains a column to indicate whether possession was
taken in the presence or in the absence of the landowner.
However, that column has not been marked by the Revenue
Inspector. It is surprising to note that the entries are marked
by an official of the BDA. We say so for the reason that the BDA
official has signed in green ink, and the marking regarding the
presence or absence of the landowner is also made in green
ink. In that view of the matter, the only possible inference is
that the marking was made by an official of the BDA. Such a
mark or noting ought to have been made by the person taking
possession, i.e., the Revenue Inspector.
14. Another aspect which causes concern is with regard to
the mahazar witnesses. The mahazar records the details of the
property, its extent, and bears the signature of the Revenue
Inspector, stated to have been drawn in the presence of
mahazar witnesses. While the details referred to above are
found in carbon ink, the signatures of the witnesses appear to
be in original ink. When the contents and the signature of the
Revenue Inspector are in carbon copy, the reason for the
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witnesses having affixed their original signatures directly on
such a copy remains unexplained. As the taking of possession is
seriously disputed by respondent No.2, the burden lies heavily
on the appellant to establish the same. On the face of the
record, we are constrained to entertain a serious doubt as to
the correctness and genuineness of the mahazar produced
before us.
15. On perusal of the mahazar, we notice that the mahazar
witnesses are not identifiable. Except for their signatures, no
other particulars such as names or addresses are furnished.
This deficiency is found in the mahazar, in addition to the other
infirmities noticed hereinabove. This Court, in W.P.
No.16865/2022, disposed of on 27.01.2025 [H.
Nagarajaiah and others vs. State of Karnataka and
others], has held that where the mahazar witnesses are not
identifiable, the mahazar itself cannot be relied upon. In the
present case also, as the mahazar witnesses are not identifiable
for want of particulars, the principle laid down in the aforesaid
decision squarely applies. We find that the facts in both cases
are substantially identical.
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16. In light of our finding in the preceding paragraph
regarding the correctness of the award notice and the
discrepancies noticed hereinabove, the possession mahazar
dated 16.11.1993 appears doubtful and cannot be accepted.
The appellant has not produced any corroborative material to
establish that actual possession of the land was taken in
accordance with law.
17. Having regard to the contention that, along with the
award notice, respondent No.2 was issued a notice to hand
over possession on 16.11.1993, and that possession was
allegedly taken on 16.11.1993 after measurement in the
presence of the landowner and witnesses, reliance placed on
the judgment in Balwant Narayan Bhagde supra to contend
that there is no strict rule or procedure for taking possession is
of no assistance to the appellant.
18. In light of the above finding, we hold that possession of
the land in question has not been taken in accordance with
Section 16 of the Land Acquisition Act, 1894.
19. Section 16 of the Land Acquisition Act, 1894
contemplates vesting of land with the Government free from all
encumbrances only after possession is taken. In light of the
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finding recorded hereinabove that taking of possession itself is
not established, the question of the land vesting with the
Government free from all encumbrances does not arise.
20. Respondent No.2 has furnished the details regarding the
extent of lands notified. The acquisition covers lands in two
villages. Since the land in question is situated within the limits
of Hulimavu Village, reference is made only to the extent
pertaining to Hulimavu Village. A total extent of 524 acres 09
guntas was notified under the Preliminary Notification, and 388
acres 09 guntas was notified under the Final Notification. Out of
the said extent, layout was formed under the scheme only to
the extent of 31 acres 02 guntas. On a comparative analysis, it
is evident that the area utilized for formation of layout
constitutes less than 10% of the total extent of land notified
under the Final Notification.
21. Section 27 of the BDA Act reads as under;
"27. Authority to execute the scheme within five years.-
Where within a period of five years from the date of the
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."
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Section 27 of the BDA Act mandates that the Authority
shall substantially execute the scheme within a period of five
years from the date of its publication; otherwise, the scheme
shall lapse.
22. The formation of layout in an extent of 31 acres 02
guntas is not disputed by the appellant. The utilization of 31
acres 02 guntas out of the finally notified extent of 388 acres
09 guntas, by no stretch of imagination, can be considered as
substantial execution of the scheme. In that view of the matter,
it is to be held that the BDA has failed to execute the scheme
substantially within five years from the date of publication in
the Official Gazette of the declaration under Section 19(1) of
the Act, and hence, the scheme has lapsed. No explanation is
forthcoming from the appellant as to why the scheme was not
substantially executed within the prescribed period. In the
absence of such explanation, the delay in execution of the
scheme is attributable to the Authority. The only contention
urged on behalf of the BDA is that even if the scheme has
lapsed, the land vests with the BDA in view of Section 16 of the
LA Act. In light of our finding on the possession mahazar, such
contention is untenable.
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23. Learned counsel for respondent No.2 has pleaded parity
and invited the attention of this Court to various orders wherein
the notifications were quashed on the ground that the scheme
had lapsed. It is further submitted that the BDA had
unsuccessfully challenged those orders before the Division
Bench of this Court and the Hon'ble Supreme Court. It is stated
that the lands involved in those writ petitions are adjoining the
land in question. Learned counsel further contends that, in view
of the quashing of acquisition in respect of neighbouring lands,
the land in question has become an isolated pocket and is
unsuitable for formation of layout. The said submission and the
details placed by learned counsel for respondent No.2 are not
disputed by the learned counsel for the appellant.
24. For the sake of brevity, the details of the orders passed in
the writ petitions, writ appeals, and special leave petitions
before the Hon'ble Supreme Court, along with the survey
numbers involved, are tabulated herein below:
Survey No. Writ Date Writ Date Special Date
Petition Appeal Leave
Petition
21/1C2 5507/2014 21/04/2014 1274/2015 26/11/2020 ------- ------
45, 46/1, 17421- 16/12/2013 ------ ------- ------- -------
51/1, 50/2, 32/2012 and
21/1C1, connected
21/1C3, matters
21/1C6
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47/2 55991/2015 19/09/2017 6936/2017 16/08/2018 19776/2019 12/10/2022
12/1 20172/2014 18/08/2017 ------- --------- --------- ---------
18/2 21641/2012 12/02/2016 --------- --------- --------- ---------
13/2, 13/3, 16383/2014 25/04/2014 374/2022 21/03/2023 38202/2023 Pending
13/4, 13/5,
81/4A, 11125/2014 29/09/2015 941/2021 Pending --------- ---------
81/4B & 12140-
48/3 34108/2013 29/11/2013 --------- --------- --------- ---------
9 2370/2015 05/07/2021 113/2016 12/01/2017 --------- ---------
[The current Writ Appeal has arisen out of WP No.38981/2014
appealed in WA No.4718/2016 reviewed in RP No.236/2021
and SLP Nos.4523-4524/2023 pertaining to Sy. No.21/1B.]
The lands involved in the aforesaid writ petitions are
adjacent to the land in question and form part of the very same
notifications.
25. At the instance of the landowners of various survey
numbers, the acquisition in respect of those lands has been
declared as having lapsed and such declaration has attained
finality. Among other reasons, respondent No.2 is also entitled
to similar relief on the principle of parity. In the absence of any
distinguishing features either in fact or in law, we find no
reason to take a different view.
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26. In our considered view, the lands notified under the
impugned notifications have already been quashed by this
Court, inter alia, on the ground that the scheme had lapsed.
Respondent No.2 is, therefore, entitled to a similar relief on the
principle of parity. The appellant has not made out any
demonstrable ground, either on facts or in law, to take a
different view in the present case.
27. Learned counsel for the appellant has vehemently
contended that the possession of the land is with the BDA. This
contention is seriously disputed by respondent No.2. In view of
our finding on the correctness of the mahazar, such contention
is untenable. Moreover, no material is placed on record to
establish that the appellant is in possession of the land in
question.
28. The other contention urged by the learned counsel for the
appellant is that respondent No.2 has accepted the award by
filing a reference application for enhancement of compensation
and by withdrawing the compensation amount. However, this
Court, in W.P. No.55991/2015, concerning the very same
notifications relating to Sy.No.47/2 of Hulimavu Village, has
held that a challenge to the acquisition is maintainable
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notwithstanding the receipt of compensation, and that re-
deposit of the compensation amount along with interest can be
directed, particularly in cases where the surrounding lands are
de-notified or excluded from acquisition.
29. In the present case, it is the submission of respondent
No.2 that the acquisition proceedings in respect of neighbouring
lands, including his own, have been quashed and the said
orders have attained finality, thereby rendering the land in
question an isolated pocket. This Court in W.P. No.55991/2015
has categorically held that acquisition cannot be sustained
when the land stands as an isolated island, a view with which
we are in agreement, and which is squarely applicable to the
present case.
30. The appellant has contended that, subsequent to the
acquisition of land, sites have been formed and allotted to
eligible members. It is submitted that, as rights have been
created in favour of third parties, it cannot be held that the
scheme was not executed, nor can the acquisition be set aside.
In support of this contention, learned counsel has relied upon
the allotment letters issued in favour of the allottees. However,
the allotment, by itself, does not create any right in favour of
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the allottee unless the title to the allotted site is transferred in
accordance with law. We find that there is no material to
indicate that such transfer of title has taken place. Hence, the
allotment letters, in themselves, cannot be relied upon to
sustain the acquisition proceedings, which are otherwise
unsustainable.
31. This submission is also untenable for yet another reason.
Respondent No.2 has placed on record sufficient material
indicating that the adjacent or neighbouring lands have either
been dropped from acquisition or the acquisition thereof has
been quashed. In such circumstances, the contention of the
appellant cannot be appreciated, for if the adjoining lands are
no longer available for formation of the layout, it cannot be said
that the layout could have been formed. As observed in the
preceding paragraphs, the land in question has remained as an
isolated island.
32. Now, let us examine the judgments relied on by the
respective parties.
33. Learned counsel for the appellant has placed strong
reliance on the judgment of the Hon'ble Supreme Court in
Offshore Holdings Private Limited supra to contend that
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even if the scheme lapses, the acquisition may not. The Hon'ble
Supreme Court, while interpreting the provisions of the BDA
Act, has laid down the law in this regard. The relevant
observations of the Apex Court are extracted at paragraphs 37,
38, and 39, which read as follows:
"37. The provisions of Section 27 of the BDA Act
mandate the Authority to execute the scheme,
substantially, within five years from the date of
publication of the declaration under sub-section (1) of
Section 19. If the Authority fails to do so, then the
scheme shall lapse and the provisions of Section 36 of
the BDA Act will become inoperative. The provisions of
Section 27 have a direct nexus with the provisions of
Section 36 which provide that the provisions of the Land
Acquisition Act, so far as they are applicable to the State
Act, shall govern the cases of acquisition otherwise than
by agreement. Acquisition stands on a completely
distinct footing from the scheme formulated which is the
subject-matter of execution under the provisions of the
BDA Act.
38. On a conjunctive reading of the provisions of
Sections 27 and 36 of the State Act, it is clear that
where a scheme lapses, the acquisition may not. This, of
course, will depend upon the facts and circumstances of
a given case. Where, upon completion of the acquisition
proceedings, the land has vested in the State
Government in terms of Section 16 of the Land
Acquisition Act, the acquisition would not lapse or
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terminate as a result of lapsing of the scheme under
Section 27 of the BDA Act. An argument to the contrary
cannot be accepted for the reason that on vesting, the
land stands transferred and vested in the
State/Authority free from all encumbrances and such
status of the property is incapable of being altered by
fiction of law either by the State Act or by the Central
Act. Both these Acts do not contain any provision in
terms of which property, once and absolutely, vested in
the State can be reverted to the owner on any condition.
There is no reversal of the title and possession of the
State. However, this may not be true in cases where
acquisition proceedings are still pending and land has
not been vested in the Government in terms of Section
16 of the Land Acquisition Act.
39. What is meant by the language of Section 27 of
the BDA Act i.e. "provisions of Section 36 shall become
inoperative", is that if the acquisition proceedings are
pending and where the scheme has lapsed, further
proceedings in terms of Section 36(3) of the BDA Act
i.e. with reference to proceedings under the Land
Acquisition Act shall become inoperative. Once the land
which, upon its acquisition, has vested in the State and
thereafter vested in the Authority in terms of Section
36(3); such vesting is incapable of being disturbed
except in the case where the Government issues a
notification for revesting the land in itself, or a
corporation, or a local authority in cases where the land
is not required by the Authority under the provisions of
Section 37(3) of the BDA Act."
(underlining mine)
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34. In light of the above, even if the scheme lapses, the
acquisition may not necessarily lapse, would depend upon the
facts and circumstances of each case. Where, upon completion
of the acquisition proceedings, the land has vested in the State
Government in terms of Section 16 of the Land Acquisition Act,
the acquisition would not lapse or terminate merely by reason
of the scheme having lapsed under Section 27 of the BDA Act.
However, the contention of the appellant regarding vesting of
the land is untenable, as vesting is contingent upon the taking
of possession. In the present case, taking possession of the
land has not been established, and the document relied upon to
establish possession is not trustworthy. In that view of the
matter, the principle laid down in the aforesaid judgment is
inapplicable to the facts of the present case.
35. Reliance placed on the judgment of this Court in
V.T. Krishnamurthy supra, to contend that a challenge to the
acquisition is not maintainable after filing an application for
enhancement of compensation, is of no assistance to the
appellant. A similar contention was negatived by this Court in
W.P. No.55991/2015 arising out of the very same impugned
notifications, which, as submitted, has attained finality. In the
said writ petition, this Court, while dealing with neighbouring
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lands covered under the same notification, held that the
acquisition had lapsed as the scheme was not substantially
executed, upon comparing the extent of the layout formed with
the total extent of land notified.
36. This Court also took note of the de-notification or
exclusion of similarly situated lands from the scheme, which
stand on the same footing as the land of respondent No.2. The
said order was assailed in W.A. No.6936/2017 by the BBMP and
came to be dismissed on 16.08.2018. The Special Leave
Petition in SLP (C) No.19776/2019 was also dismissed by the
Hon'ble Supreme Court on 12.10.2022. Similar orders have
been passed in W.P. Nos.20172/2014, 21641/2012, 16383-
16387/2014, 11125/2014 & 12140-63/2014, 34108/2013,
2370/2015 and other connected matters, all of which were filed
between 2014 and 2017. The orders quashing the acquisition
have attained finality and the respective lands stand excluded
from the scheme. In that view of the matter, the contention of
the appellant that the writ petition is belated and not
maintainable is untenable and is accordingly rejected.
37. For the aforesaid reasons, we find no merit in the writ
appeal. Accordingly, the writ appeal stands dismissed.
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Office is directed to return the original records to the
learned counsel for the appellant.
Sd/-
(JAYANT BANERJI)
JUDGE
Sd/-
(K. V. ARAVIND)
JUDGE
MV
