IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 1ST DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.3486 OF 2016 (LA-BDA) BETWEEN:
1. BANGALORE DEVELOPMENT AUTHORITY BY ITS COMMISSIONER T.CHOWDAIAH ROAD KUMARA PARK WEST BENGALURU -560 020 2. THE ADDITIONAL LAND ACQUISITION OFFICER BENGALURU DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD KUMARA PARK WEST BENGALURU -560 020.
APPELLANT No.1 REPRESENTED BY APPELLANT No.2 ... APPELLANTS (BY SRI.SACHIN B S, ADVOCATE) AND:
1. SRI C KRISHNAREDDY SON OF LATE CHANNAPPA REDDY AGED ABOUT 64 YEARS RESIDING AT NO.09 VBT LAYOUT, ARAKERE BANNERGHATTA ROAD BENGALURU SOUTH TALUK-560 076.
2. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY URBAN DEVELOPMENT DEPARTMENT M.S. BUILDING BENGALURU -560 001.
... RESPONDENTS (BY SRI. B V SHANKARANARAYANA RAO, ADVOCATE FOR RESPONDENT No.1) THIS APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No. 10347/2015 DATED 28/01/2016.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 28.01.2016 passed by the learned Single Judge in W.P. No.10347 of 2015, by which the petition was allowed declaring insofar as the petitioner’s land is concerned the scheme of acquisition is said to have lapsed, the respondents 2 and 3 therein are in appeal.
2. The petitioner filed writ petition to declare the acquisition proceedings in respect of the schedule property initiated under preliminary notification dated 08.09.1987 and final notification dated 28.07.1990, has lapsed under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and to declare the scheme under the notifications have lapsed under Section 27 of the Bangalore Development Authority Act, 1976 (for short ‘the BDA Act’). The petitioner asserts that he is the absolute owner in possession of land in Sy.No.77/1, measuring 32 guntas situated at Arakere Village, Begur Hobli, Bangalore South Taluk. It is also stated that there are certain structures over the lands in question. The 2nd respondent issued preliminary notification 08.09.1987 proposing to acquire total extent of 805 acres 21 guntas of land for formation of “Byrasandra Tavarekere Madivala, 6th Stage Layout.” The petitioner’s land was also notified in the above stated preliminary notification for acquisition to an extent of 32 guntas. Thereafter, final notification dated 28.07.1990 was issued. The 3rd respondent passed award on 03.03.1993, which is passed belatedly contrary to Section 11 A of the Land Acquisition Act, 1894. It is stated that even though award is passed no physical possession of the lands have been taken. It is stated that the Central Government repealed the Land Acquisition Act and has brought into effect Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (for short ‘the 2013 Act’). It is the case of the petitioner that as the award is passed on 26.07.1993 and even after five years from the date of passing the award, physical possession is not taken. Section 24(2) of 2013 Act would come into play and acquisition proceedings is deemed to have lapsed. The respondent-BDA in its objection denying the claim that the acquisition has lapsed contends that land has vested with the State. The learned Single Judge allowed the petition and held that the scheme has lapsed insofar as the petitioner’s land is concerned, since the petitioner continued in possession and the scheme has not been substantially implemented within five years from the date of final notification. Aggrieved by the same, the respondents 2 and 3 are in appeal.
3. Heard the learned counsel for the appellants and perused the appeal papers.
4. Learned counsel for the appellants submits that award was passed on 03.11.1993 in respect of the petitioner’s land and award notice issued, has been refused by the petitioner - land owner. Award amount has been deposited before the Civil Court on 05.03.1996 and possession of the land in question has been taken and handed over to Engineering Section on 16.11.1993 for implementation of the scheme. Therefore, the learned Single Judge committed an error in declaring the scheme has lapsed insofar the petitioner’s land is concerned. The submission of the learned counsel for the appellants is that the learned Single Judge could not have declared the entire scheme as being lapsed without their being material on record. It is further contended that there is delay in challenging the acquisition proceedings and only on the ground of delay, the writ petition is liable to be rejected.
5. Having heard the learned counsel for the appellants and on perusal of the material on record, we are of the view, the order of the learned Single Judge is neither perverse nor erroneous. The appellants issued preliminary notification under Section 17 of the BDA Act on 08.09.1987 proposing to acquire land for formation of layout called “Byrasandra Taverekere Madivala 6th Stage layout.” The petitioner’s land bearing Sy.No.77/1, Begur Hobli, measuring 32 guntas was also notified for acquisition. Final notification was issued on 28.07.1990. Award in respect of the land in question was passed on 03.03.1993. The respondent – BDA states that since the petitioner refused to receive the award notice, award amount has been deposited before the City Civil Court. The petitioner has asserted that he is in possession of the land in question and the respondents have not taken physical possession of the land in question. No material is placed before the Court to indicate as regards the taking over of possession by the respondent – BDA. The learned Single Judge on facts has come to the conclusion that scheme insofar as the petitioner’s land is concerned has lapsed. Section 27 of the Act reads as follows :-
“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.”
From a reading of the above provision it is clear that if the scheme is not implemented substantially within five years from the date of final notification, the scheme would lapse.
In the case on hand, preliminary notification is dated 08.09.1987, final notification is dated 28.07.1990 and award is passed on 03.03.1993. Even though the final notification is dated 28.07.1990, the scheme is not implemented insofar as the petitioner’s land is concerned to an extent of 32 guntas in Sy.No.77/1 of Arakere Village, Begur Hobli, Bangalore South Taluk and as asserted by the petitioner, possession of the land in question is still with the petitioner. The contention of the appellants that the learned Single Judge has declared entire scheme has lapsed is not correct. The operative portion of the learned Single Judge’s order would make it clear that the learned Single Judge has declared the scheme has lapsed insofar as the petitioner’s land is concerned and not the entire scheme. Insofar as the contention of the respondent -BDA that the writ petition is liable to be dismissed for delay and laches is concerned, the delay cannot be attributed to the petitioner but delay has occasioned due to lapses on the part of the respondents. Even though the final notification is dated 28.07.1990, the learned Single Judge has noted that the scheme has not been substantially implemented insofar as the petitioner’s land is concerned. Thus, delay is on the part of respondents and the same cannot be held against petitioner. Thus, viewed from any angle the appellants have not made out any ground to interfere with the order passed by the learned Single Judge. Accordingly the writ appeal is dismissed.
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JUDGE JUDGE NG* CT:bms