IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE Mr. JUSTICE B.S.PATIL WRIT PETITION NO.5312/2016 (LA-BDA) BETWEEN 1. A. Gurumurthy Reddy, S/o Late A. Annaiah Reddy, Aged about 66 years, R/at No.509, A. Annaiah Reddy Layout, Sy.No.346, Banaswadi Village, Bengaluru – 560 043.
2. A. Sri Rama Reddy, S/o Late A. Annaiah Reddy, Aged about 59 years, R/at No.483/1, A. Annaiah Reddy Layout, Sy.No.346, Banaswadi Village, Bengaluru – 560 043.
3. A. Prabhu, S/o Late A. Annaiah Reddy, Aged about 56 years, R/at No.554/4, A. Annaiah Reddy Layout, Sy.No.346, Banaswadi Village, Bengaluru – 560 043.
4. A. Prakash, S/o Late A. Annaiah Reddy, Aged about 46 years, R/at No.654/1, A. Annaiah Reddy Layout, Sy.No.346, Banaswadi Village, Bengaluru – 560 043. ... Petitioners (By Sri.Sharath S. Gowda, Advocate) AND 1. State of Karnataka, By its Secretary, Department of Urban Development, M.S.Building, Bengaluru – 560 001.
2. Bengaluru Development Authority, T. Choudaiah Road, Kumara Part West, Bengaluru – 560 020, Reptd, by its Commissioner.
3. The Additional Land Acquisition Officer, Bengaluru Development Authority, T.Choudaiah Road, Kumara Part West, Bengaluru – 560 020. ... Respondents (By Sri.B.S. Sachin, Adv. for R-2 & R-3; Sri. Vijaya Kumar A. Patil for R-1) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT TO DECLARE THE PRELIMINARY NOTIFICATION DATED 21.03.1977, ISSUED UNDER SUB SEC (1) AND (3) OF SEC 17 OF THE BENGALURU DEVELOPMENT AUTHORITY ACT, 1976 (IN SHORT BDA ACT) AT ANNEX-A AND CONSEQUENTLY THE FINAL NOTIFICATION DATED 14.05.1980 ISSUED UNDER SEC.19 (1) OF THE BDA ACT, AT ANNEX-B FOR THE FORMATION OF THE LAYOUT CALLED ‘SCHEME BETWEEN BANASWADI ROAD AND HENNUR ROAD’ AS LAPSED UNDER SEC 27 OF BDA ACT, IN RESPECT OF PETITION SCHEDULE PROPERTY ETC.
THIS PETITION COMING ON FOR FINAL DISPOSAL, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This writ petition is filed under Article 226 of the Constitution of India, seeking a declaration that acquisition proceedings initiated vide preliminary notification dated 21st March 1977 issued under Section 17(1) and final notification dated 04.05.1980 issued under Section 19(1) of the BDA Act have stood lapsed in terms of Section 27 of the BDA Act and also as per Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
2. Petitioners were absolute owners of land measuring 3 acres 33 guntas of land bearing Survey No.346 of Banaswadi village, K.R.Puram Hobli, Bengaluru South Taluk. The land was originally owned by his father A.Annaiah Reddy. According to petitioners, they had constructed a house with RCC roof and have been living in the petition schedule property. This land was acquired for BDA as per final notification dated 14.05.1980 for formation of Hennur-Banasawadi road. According to petitioners, neither possession of the entire land was taken nor any layout was formed in this survey number and on the contrary, petitioners continued to be in actual possession of entire extent of land except an extent of 1 acre which was utilised for formation of 100’ road by the BDA. It is their further contention that though BDA claimed to have passed an award on 20.03.1986, compensation amount was neither paid to petitioners nor deposited in Civil Court in accordance with law but was kept by BDA in their revenue deposit. It is in this back ground petitioners have approached this Court seeking a declaration that acquisition proceedings have lapsed in so far as the land in question except 1 acre that has been utilized for formation of road.
3. Learned counsel for petitioners places strong reliance on the Judgment rendered by this Court in case of SRI.B.V.SRINIVAS REDDY V/S.STATE OF KARNATAKA AND OTHERS (Writ Petition No.9734-9737/2015 disposed of on 11th January 2017) to contend that in similar circumstances where BDA had not paid compensation for the acquired land, but had kept it in its revenue deposit, a declaration has been made holding that acquisition proceedings stood lapsed in so far as unutilized portion of land was concerned and that as regards the portion utilized for formation of road, BDA was directed to pass an award afresh determining compensation under the provisions of the new Act 2013 and pay the same.
4. Learned counsel appearing for respondent-BDA Sri.B.S.Sachin submits that as the amount has been kept in revenue deposit, it was open for petitioners to withdraw and for the omission on his part, BDA shall not be made to loose the land duly acquired by it. It is his further submission that question of lapse of acquisition either under Section 24 (2) of the New Act, 2013 or under Section 27 of the provisions of the Bangalore Development Authority Act, 1976, would not arise because layout has been substantially completed.
5. Having heard learned counsel for the parties, I find that Judgment rendered by this Court in Writ Petition No.9734-9737./2015 (LA-BDA) is squarely applicable to the facts of present case. Even in the facts of said case, though land was acquired and award was passed after utilizing 18 guntas of land for formation of road, remaining extent of land was kept unutilized and compensation amount was kept in revenue deposit with BDA. In such circumstances, this Court has held in Paragraphs 12 and 13 as under:
12. In respect of land bearing Sy.No.343/2 is concerned, admittedly as is evident from the affidavit filed by the petitioner, 18 guntas of land has been utilized for formation of the road. If the BDA has utilized the said land for formation of road, it is not in the interest of public to apply the same principle applicable to the other lands. Insofar as the portion of the land utilized for formation of road, although in principle, the action of the BDA in utilizing the land without paying compensation to the petitioner is illegal.
However, in respect of the other portion of the land comprised in this survey number, as the same has not been utilized and no compensation has been paid, it cannot be said that the BDA has discharged its statutory duty in terms of the provisions to either the Land Acquisition Act as it governed the field earlier or the provisions of 2013 Act, which are now held to be applicable even for acquisition by the BDA. The award in respect of this land has been passed on 02.08.1983. The stand of the BDA is that amount has been kept with itself in revenue deposit. There is no justification whatsoever coming forth as to how, so long the amount of compensation could be withheld and kept on to itself by the BDA. The land looser is, in the process, made to languish as he has lost 18 guntas of land for formation of land without being paid any compensation. Therefore, it has to be held on the process of reasoning already adopted earlier that the unutilized portion of the land that is except 18 guntas of land comprised in this survey number which is utilized for road, the acquisition proceedings shall be deemed to have abandoned or lapsed and are declared as such. However, with regard to 18 guntas of land which the petitioner has himself admitted that the same has been used for the formation of the road, the BDA has to pass the award under the provisions of 2013 Act and pay compensation within a period of three months from the date of receipt of a copy of this order.
13. In the result and for the foregoing, acquisition proceedings in respect of these lands except 18 guntas comprised in Sy.No.343/2 are declared as lapsed/abandoned by the BDA. The BDA shall not have any claim over the same. In respect of 18 guntas comprised in Sy.No.343/2, the BDA, which has utilized the land belonging to petitioner, is directed to pass award under the provisions of 2013 Act and pay compensation within a period of three months from the date of receipt of a copy of this order. Writ Petitions are accordingly disposed of.
6. Having regard to the fact that facts and circumstances involved in the present case are similar and omission and commission on the part of BDA is to same effect, petitioners in this writ petition are also entitled to succeed.
7. Hence, these writ petitions are allowed. The acquisition proceedings in respect of land in question bearing Survey No.346, totally measuring 3 acre 33 guntas excluding 1 acre 2 guntas of land out of the same utilized for the purpose of formation of layout is declared as lapsed. In respect of 1 acres 2 guntas of land, as compensation has not been paid to petitioner and revenue deposit of the amount of compensation by BDA would not amount to payment of compensation, BDA shall determine the market value payable to the said extent of land as on today and pay the compensation as early as possible, at any rate within a period of six weeks from the date of receipt of a copy of this order.
Sd/- JUDGE bnv*