2. Declare that the Notifications dated 03.01.1985
published on 04.01.1985 issued under Section 4(1) of the
LA Act vide Annexure-`B' Notification dated 22.09.1986
published date 25.09.1986 issued under Section 6(1) of
the LA Act vide Annexure-C are bad in law as the lands of
the petitioners were never taken possession of by the
Respondents and further declare that the entire
acquisition proceedings stood lapsed in so far as the
petitioners are concerned.
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2. Case of the petitioners is that the aforesaid land belong
to their grandmother Smt.Venkatamma who in terms of a
registered Will dated 07.02.1980 had bequeathed the same in
favour of her family members. A suit in O.S.No.574/1989 had
been filed for partition and separate possession. That the said
suit ended in a compromise that was entered into on
24.02.2012. A Final Decree was drawn and the same was
registered in the office of concerned Sub-Registrar,
Bytarayanapura on 03.01.2013. In the said compromise
decree land to an extent of 19 guntas out of 39 guntas has
been given to the petitioner No.1 while remaining land to an
extent of 20 guntas in Sy.No.37/1 has been given to petitioner
No.2. Petitioners have been thus continued to be in possession
and enjoyment of the aforesaid land in Sy.No.37/1 as absolute
owners thereof even till date. In the revenue records name of
Smt.Venkatamma is reflected till date and petitioners have
constructed ACC sheet houses and have obtained power
connection from BESCOM and are residing in the said land
exercising their absolute ownership over the same. That the
petitioners were under bonafide belief that the acquisition that
was initiated in respect of the aforesaid land had been dropped
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inasmuch as the Special Land Acquisition Officer had made a
recommendation for excluding the said land as it contained
structures and buildings. That the name of said
Smt.Venkatamma and Sri.Anjanappa, uncle of the petitioners
who was the elder member of the family has been shown as a
Kathedar and Anubhavadar in the notifications that were issued
under Sections 4 and 6 of the Land Acquisition Act. However
neither the award is passed nor any compensation paid either
to the notified Khathedar-Smt.Venkatamma or their uncle
Sri.Anjanappa or to the petitioners. Possession of the said
land has also not been taken. No material is produced with
regard to deposit of compensation under Section 18 before the
concerned Court either. Thus in view of non compliance of the
aforesaid statutory requirement, the acquisition shall be held to
have lapsed in terms of sub-Section (2) of Section 24 of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013.
3. The further contention raised by the petitioners is that
the land in Sy.No.37/1 belonging to the petitioners has not
been included under the notification that was issued under
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Section 16(2) of the Land Acquisition Act which is produced at
Annexure-E.
4. Thus learned counsel for petitioners referring to these
documents and averments made in the writ petition
vehemently submits that when neither the award is passed nor
the compensation is paid nor even possession taken, the
interest of the petitioners is covered in terms of the law laid by
the Apex Court in the case of Indore Development Authority
Vs Manoharlal and others reported in (2020) 8 SCC 129.
He also refers to endorsement dated 18.01.2016 purportedly
issued by the Special Land Acquisition Officer in which it was
stated that no award has been passed in respect of the said
land, though preliminary and final notification have been issued
in respect thereof. Thus, learned counsel for petitioners seek
for allowing of the petition declaring the acquisition having
been lapsed.
5. In response learned HCGP submits that fact of
acquisition of land is reflected in the very document enclosed
by the petitioners along with writ petition at Annexure-A
namely the RTC for the year 1988-89 till 1992-93 in which at
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column No.11 name of NTI House Building Co-operative Society
is reflected which was entered into in M.R.No.3/88-89 to 92-93.
He submits such entries are made soon after issuance of the
notifications. He further submits that petitioners cannot plead
ignorance of they not knowing about the acquisition process.
He further submits petitioners being aware of the acquisition
proceedings which has taken place in the year 1988 have
approached this Court in the year 2016 that is after lapse of
close to 28 years. Thus it is contended that the petition is
liable to be dismissed at the outset on the ground of delay and
laches. He refers to the judgment of the Division Bench of this
Court dated 02.08.2021 passed in Sri.N.Ramaraju and others
Vs The Principal Secretary and others in W.A.No.17016/2011
and connected matters pertaining to very same notifications in
which the Division Bench of this Court upholding the rejection
of challenge made by the land owners had confirmed the order
of Co-ordinate Bench of this Court and dismissed the said writ
appeals.
6. Learned HCGP further submits that after completion
of the acquisition, notification under Sub-Section (2) of Section
16 of the Land Acquisition Act were issued on two occasions
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firstly on 12/15.04.1991 and on 4/5.11.1992. He submits land
subject matter of present petition was shown in the second
notification issued under sub-Section (2) of Section 16 on
4/5.11.1992. Referring to the endorsement dated 18.01.2016
produced at Annexure-P by the petitioners, learned HCGP
submits that the said document does not appear to be genuine
inasmuch as there is a reference number given in the left hand
side of the document as LAC 141/86-87 which in the normal
course is not the procedure. He submit that the said document
appears to have been brought up for the purpose of the case.
In this case in any event the award has been passed in the
name of original khathedar Smt.Venkatamma and
Sri.Anjanappa as per the award dated 01.07.1988 in LAC
No.141/1986-87. Thus, on these grounds he seeks for
dismissal of the writ petition.
7. Sri.Prakash, learned counsel appearing for the
respondent-society taking this Court through the statement of
objections and documents enclosed therewith submits that
since issuance of Preliminary notification and Final notification
not being in dispute the only aspect of the matter requires to
be considered is passing of the award and taking possession.
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As regards passing of the award learned counsel refers to
Annexure-R-3 to the statement of objections wherein name of
Smt.Venkatamma and Sri.Anjanappa is shown in respect of the
land in Sy.No.37/1 measuring 39 guntas. Compensation in a
sum of Rs.83,801.25 inclusive of interest and all statutory
allowances is shown to have been determined as on
01.07.1988. He refers to notification dated 4/5.11.1992
published on 17.12.1992 issued under sub-section (2) of
Section 16 of the Land Acquisition Act produced at Annexure-R-
4 and points out at Sl.No.49 the subject land having been
reflected evidencing taking over the possession. He also refers
to the development plan that had been approved by the
respondent BDA and Town planning members according
sanction for the development of the acquired land produced at
Annexure-R-7. He also refers to work order dated 04.03.2010
issued by BDA produced at Annexure-R8 and submits that in
furtherance to the said work order and the development plan
sanctioned by the respondent-BDA, full fledged layout has been
formed, sites have been allotted, houses have come up. He
refers to Annexure-R9 which is a list containing 23 names of
the allottees of the sites forming part of land in Sy.No.37/1
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subject matter of the present petition. He also refers to the
photographs produced along with memo dated 08.07.2022
showing existence of residential houses constructed on the
subject land. Thus, referring to the aforesaid material
documents produced on record it is submitted that the
acquisition having been completed, award having been passed,
possession having been taken, in the manner known to law, it
is not open for the petitioners to seek relief as sought for in the
present proceedings.
8. Heard and perused the records.
9. Even from the perusal of the petition averments,
documents produced more particularly at Annexure-A and from
the submissions made by learned counsel for petitioners one
thing is clear, that is petitioners are also aware of the
acquisition proceedings having been initiated by respondent
authorities by issuing preliminary notification dated 04.01.1985
followed by final notification on 22.09.1986. What follows
thereafter for consideration is the so called bonafide
understanding of the petitioners of their land having been left
out from acquisition upon the purported recommendation made
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by the Special Land Acquisition Officer. In justification of the
contentions, petitioners have relied upon the notification dated
12/15.04.1991 issued under sub-section (2) of Section 16 of
the Land Acquisition Act, where there is no mention of the land
in Sy.No.37/1 being claimed by the petitioners. What the
petitioners do not speak of is the issuance of the second
notification that was issued by the respondent authorities under
sub-section (2) of Section 16 of the Land Acquisition Act on
4/5.11.1992 which is produced by the respondent No.4 . There
is no denial of the said notification having been issued by the
respondent authorities. Issuance of these notifications under
sub-section (2) of Section 16 of the Land Acquisition Act has
been taken note of by the Division Bench of this Court in its
order dated 02.08.2021 passed in the challenge mounted by
other landowners in respect of the very same notification. It is
settled law issuance of notification under sub-section (2) of
Section 16 of the Land Acquisition Act is an evidence of taking
possession of the acquired land.
10. Approval of sanctioned layout plan, issuance of work
order by respondent- BDA as per Annexure-R7 and R8
produced by the respondent No.4 is a proof of implementation
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of the scheme. The photograph produced by the respondent
No.4 with regard to existence of residential houses even as
fairly admitted by learned counsel for the petitioners is further
evidence of allottees constructing their houses on the sites
allotted to them which formed part of the land subject matter
of the present writ petition.
11. Appropriate also to refer to mahazar and the sketch
that is produced by the Assistant Director of Land Records
pursuant to the order passed by this Court on 08.07.2022 along
with the memo dated 16.09.2022 wherein report has been filed
specifically referring to land in Sy.No.37/1 and showing the
existence of sites formed by the respondent No.4 and the
construction of houses thereon. So much to point out
possession having been taken by the respondent authorities
pursuant to the acquisition made in terms of the aforesaid
notification.
12. As regards passing of the award is concerned
document at Annexure -R3 produced along with the statement
of objections would reveal that the Special Land Acquisition
Officer has determined the compensation at Rs.83,801.25
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which included all the statutory allowances payable under the
Act as on 01.07.1988 payable to Smt.Venkatamma and
Sri.Anjanappa. The said amount is stated to have been paid to
Smt.K.H.Ramakrishnappa (the father of the petitioners herein
and son of Smt.Venkatamma). Said amount has been paid
from and out of the account maintained by the respondent
No.4-Society who was required to pay the cost of acquisition
which included the compensation. Receipts in this regard are
produced at Annexure-R10 to the statement of objections.
13. Though learned counsel for the petitioners
vehemently submitted that there has been no proof of notified
khathedars having been issued any notice with regard to award
proceedings and material produced by the respondent No.4 in
this regard cannot be relied upon, this Court is unable to accept
the said contention for the simple reason that such a ground
being urged by the petitioners who are grandchildren of the
kathedar after 26 years of completion of acquisition process.
14. The Division Bench of this Court dealing with identical
grounds raised in this writ petition in its order dated
02.08.2021 has also adverted, question of delay and laches. At
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paragraph II B. page Nos.81 and 82 of the said order, the
Division Bench of this Court calculated the days of delay in
filing the writ petition from the date of notification which range
between 19 years to 22 years did not find it appropriate to
entertain the same on the ground of delay and laches.
15. In the instant case as already noted petitioners have
approached this Court 26 years subsequent to the notifications
which is far in excess and beyond the period which is noted by
the Division Bench of this Court at pages 81 and 82 of the said
order.
16. The Apex Court in the case of Indore Development
(supra) at paragraphs 366.1 to 366.9 has adverted to
questions with regard to invocation of sub-Section (2) of
Section 24 of the Act which is squarely applicable to the
present case as well, more particularly paragraph 366.9
wherein a caution is made that the closed and stale claim shall
not be reopened as the same does not give any cause of action
to the parties which read as under:
366.1. Under the provisions of Section 24(1)(a) in case
the award is not made as on 1-1-2014, the date of
commencement of the 2013 Act, there is no lapse of
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proceedings. Compensation has to be determined under
the provisions of the 2013 Act.
366.2. In case the award has been passed within the
window period of five years excluding the period covered
by an interim order of the court, then proceedings shall
continue as provided under Section 24(1)(b) of the 2013
Act under the 1894 Act as if it has not been repealed.
366.3. The word "or" used in Section 24(2) between
possession and compensation has to be read as "nor" or
as "and". The deemed lapse of land acquisition
proceedings under Section 24(2) of the 2013 Act takes
place where due to inaction of authorities for five years or
more prior to commencement of the said Act, the
possession of land has not been taken nor compensation
has been paid. In other words, in case possession has
been taken, compensation has not been paid then there is
no lapse. Similarly, if compensation has been paid,
possession has not been taken then there is no lapse.
366.4. The expression "paid" in the main part of Section
24(2) of the 2013 Act does not include a deposit of
compensation in court. The consequence of non-deposit is
provided in the proviso to Section 24(2) in case it has not
been deposited with respect to majority of landholdings
then all beneficiaries (landowners) as on the date of
notification for land acquisition under Section 4 of the
1894 Act shall be entitled to compensation in accordance
with the provisions of the 2013 Act. In case the obligation
under Section 31 of the Land Acquisition Act, 1894 has
not been fulfilled, interest under Section 34 of the said Act
can be granted. Non-deposit of compensation (in court)
does not result in the lapse of land acquisition
proceedings. In case of non-deposit with respect to the
majority of holdings for five years or more, compensation
under the 2013 Act has to be paid to the "landowners" as
on the date of notification for land acquisition under
Section 4 of the 1894 Act.
366.5. In case a person has been tendered the
compensation as provided under Section 31(1) of the
1894 Act, it is not open to him to claim that acquisition
has lapsed under Section 24(2) due to non-payment or
non-deposit of compensation in court. The obligation to
pay is complete by tendering the amount under Section
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31(1). The landowners who had refused to accept
compensation or who sought reference for higher
compensation, cannot claim that the acquisition
proceedings had lapsed under Section 24(2) of the 2013
Act.
366.6. The proviso to Section 24(2) of the 2013 Act is to
be treated as part of Section 24(2), not part of Section
24(1)(b).
366.7. The mode of taking possession under the 1894
Act and as contemplated under Section 24(2) is by
drawing of inquest report/memorandum. Once award has
been passed on taking possession under Section 16 of the
1894 Act, the land vests in State there is no divesting
provided under Section 24(2) of the 2013 Act, as once
possession has been taken there is no lapse under Section
24(2).
366.8. The provisions of Section 24(2) providing for a
deemed lapse of proceedings are applicable in case
authorities have failed due to their inaction to take
possession and pay compensation for five years or more
before the 2013 Act came into force, in a proceeding for
land acquisition pending with the authority concerned as
on 1-1-2014. The period of subsistence of interim orders
passed by court has to be excluded in the computation of
five years.
366.9. Section 24(2) of the 2013 Act does not give rise
to new cause of action to question the legality of
concluded proceedings of land acquisition. Section 24
applies to a proceeding pending on the date of
enforcement of the 2013 Act i.e. 1-1-2014. It does not
revive stale and time-barred claims and does not reopen
concluded proceedings nor allow landowners to question
the legality of mode of taking possession to reopen
proceedings or mode of deposit of compensation in the
treasury instead of court to invalidate acquisition.
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17. Viewed from any angle no grounds are made out
warranting interference at the hands of this Court both factually
and legally. Accordingly petition is dismissed.
Sd/-
(M.G.S. KAMAL)
JUDGE
SBN
