R IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 PRESENT THE HON'BLE MR. JUSTICE B.S. PATIL AND THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA W.A. No.2020/2017 & W.A. No.4686/2017 (LA – BDA) BETWEEN:
1. BANGALORE DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD, BENGALURU – 560 020.
REPRESENTED BY ITS COMMISSIONER.
2. SPECIAL LAND ACQUISITION OFFICER, BANGALORE DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD, BENGALURU – 560 020. ... APPELLANTS (BY SRI: SACHIN B.S., ADVOCATE) AND:
1. M/S. SRI KUMARAN CHILDREN’S HOME, EDUCATIONAL COUNCIL HAVING ITS REGISTERED OFFICE AT VI-A MAIN, TATA SILK FARM, BENGALURU – 560 004, REPRESENTED BY MRS. DEEPA SHRIDHAR, AGED ABOUT 52 YEARS, SECRETARY.
2. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY, HOUSING AND URBAN DEVELOPMENT DEPARTMENT, BANGALORE – 560 001. ... RESPONDENTS (BY SRI: K.N. PHANINDRA, ADVOCATE) ***** THESE WRIT APPEALS ARE FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 20193-20194/2016 DATED 07/06/2016.
THESE APPEALS COMING ON FOR PRELIMINARY HEARING THIS DAY, B.S.PATIL J., MADE THE FOLLOWING:
J U D G M E N T These appeals are directed against the order dated 07/06/2016, passed by the learned single Judge in W.P.Nos.20193-20194/2016.
2. Learned single Judge has held that the acquisition proceedings have become inoperative and have stood lapsed insofar as the land bearing Sy.Nos.28/6 and 28/7, measuring 1 acre 13 guntas and 13 guntas respectively, situated at Doddakallasandra Village, Uttarahalli Hobli. These lands among other lands were notified for acquisition vide Preliminary Notification dated 17/11/1988 for the purpose of formation of J.P.Nagar 9th Stage Layout. This was followed by Final Notification dated 22/07/1991.
3. The main contention urged in the writ petition was based on the judgment rendered in similar case vide W.P.Nos.11022-24/2011 and other connected matters [Gautam Kamat Hotels Pvt. Ltd. vs. Bangalore Development Authority] disposed of on 08/08/2011, wherein the learned single Judge held that possession of the lands in question was indeed not taken over by the Bangalore Development Authority (BDA). The assertion made by the BDA in the said case, to the contrary had been negatived on the ground that the mahazar drawn was not in accordance with law and that there was total inconsistency regarding the date of taking over possession as stated in the mahazar as “30/05/1998” and the one mentioned in Section 16(2) Notification as 10/05/1998. In addition, the learned single Judge has found that identity of the mahazar was not ascertainable because, the mahazar contained only signatures and not any particulars of the mahazar witnesses. Learned single Judge has also pointed out that the scheme had not been substantially implemented inasmuch as out of total extent of 241 acres 20 guntas of land acquired in Doddakallasandra Village, only 12 acres had been utilized and that at all stages, BDA was negligent and lethargic in implementing the scheme.
4. It is also borne out from the documents now made available by learned counsel for the respondents/land owner by filing a memo dated 10/09/2017 along with certain documents including note sheet dated 08/12/2016 maintained by the BDA that all lands abutting the lands in question have been either not included in the notification or denotified from the acquisition having regard to their location, construction put up therein and other relevant materials.
5. It is, thus, clear from the very record maintained by the BDA that surrounding lands have not been acquired for purposes of the scheme. It is only these lands that are the subject matter of these Appeals against which the BDA intends to proceed. Thus, this additional factor also makes it clear that the BDA apart from not taking over possession of the lands in question has not made any attempt to utilize the lands for the purpose for which they were acquired. As the BDA has excluded all other lands abutting the lands in question from acquisition, it has rendered itself incapable of making use of these lands for the purpose of the scheme or for any other scheme.
6. The contention urged by the learned counsel for the BDA is that petitioner being the subsequent purchaser cannot maintain these writ petitions. This contention is untenable in law in light of the judgment rendered by the Apex Court. Reliance can be placed on the Judgement of the Apex Court in Govt. (NCT of Delhi) vs. Manav Dharam Trust, [(2017) 6 SCC 751]. Paragraph Nos.27 and 28 of the said judgment wherein reference is made to the judgment rendered by this Court in Suryaprakash’s case in W.P.No.10286-291/2014 are usefully extracted hereunder:
“27. The High Court of Karnataka at Bengaluru in Suryaprakash v. State of Karnataka [Suryaprakash v. State of Karnataka, 2016 SCC OnLine Kar 8215] has considered a situation of lapse and locus standi of the subsequent purchaser to file a writ petition for a declaration on lapse, though not under Section 24(2) of the 2013 Act. At para 16, it has been held:
“16. … the principle that transferee of land after the publication of preliminary notification cannot maintain a writ petition challenging the acquisition, cannot be made applicable to a case where the acquisition itself has been abandoned and has stood lapsed due to efflux of time on account of the omission and inaction on the part of the acquiring authority, particularly because, it is because of the lapse of time and the abandonment of the acquisition, right accrues to the original owner to deal with his property including by way of the sale and the purchaser will acquire right to protect his interest. Hence, the judgment in Rajasthan State Industrial Development and Investment Corpn. v. Subhash Sindhi Coop. Housing Society[Rajasthan State Industrial Development and Investment Corpn. v. Subhash Sindhi Coop. Housing Society, (2013) 5 SCC 427 : (2013) 3 SCC (Civ) 121] , will have no application to the facts of the present case.”
We are of the view that this decision, in principle, applies to the facts of these appeals as well.
28. Thus, the subsequent purchaser, the assignee, the successor in interest, the power-of- attorney holder, etc., are all persons who are interested in compensation/landowners/ affected persons in terms of the 2013 Act and such persons are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the respondent-writ petitioners do not have any locus standi.
Hence, though subsequent purchasers cannot normally maintain challenge to the acquisition proceedings, in cases where there is a declaration sought regarding lapse of acquisition proceedings due to efflux of time, there would be no bar for the subsequent purchaser to seek a declaration in that connection.”
7. Yet another aspect that emerges from the contention of the parties is that even though the BDA has passed an award, there is nothing to show that compensation was tendered or paid to the land owner.
8. While dealing with the scope and nature of Section 31 of the Land Acquisition Act, 1894, the Apex Court in the case of Pune Municipal Corporation & Another vs. Harakchand Misirimal Solanki & Others – (2014) 3 Scc 183, has held in para 14 to 16 and para 18 as under:
“14. Section 31(1) of the 1894 Act enjoins upon the Collector, on making an award under Section 11, to tender payment of compensation to persons interested entitled thereto according to award. It further mandates the Collector to make payment of compensation to them unless prevented by one of the contingencies contemplated in sub-section(2). The contingencies contemplated in Section 31(2) are:
(i) the persons interested entitled to compensation do not consent to receive it, (ii) there is no person competent to alienate the land, and (iii) there is dispute as to the title to receive compensation or as to the apportionment of it. If due to any of the contingencies contemplated in Section 31(2), the Collector is prevented from making payment of compensation to the persons interested who are entitled to compensation, then the Collector is required to deposit the compensation in the court to which reference under Section 18 may be made.
15. Simply put, Section 31 of the 1894 Act makes provision for payment of compensation or deposit of the same in the court. This provision requires that the Collector should tender payment of compensation as awarded by him to the persons interested who are entitled to compensation. If due to happening of any contingency as contemplated in Section 31(2), the compensation has not been paid, the Collector should deposit the amount of compensation in the court to which reference can be made under Section 18.
16. The mandatory nature of the provision in Section 31(2) with regard to deposit of the compensation in the court is further fortified by the provisions contained in Sections 32, 33 and 34. As a matter of fact, Section 33 gives power to the court, on an application by a person interested or claiming an interest in such money, to pass an order to invest the amount so deposited in such Government or other approved securities and may direct the interest or other proceeds of any such investment to be accumulated and paid in such manner as it may consider proper so that the parties interested therein may have the benefit therefrom as they might have had from the land in respect whereof such money shall have been deposited or as near thereto as may be.
18. The 1894 Act being an expropriatory legislation has to be strictly followed. The procedure, mode and manner for payment of compensation are prescribed in Part V (Sections 31-34) of the 1894 Act. The Collector, with regard to the payment of compensation, can only act in the manner so provided. It is settled proposition of law (classic statement of Lord Roche in Nazir Ahmad [Nazir Ahmad v. King Emperor, (1935-36) 63 IA 372 : (1936) 44 LW 583 : AIR 1936 PC 253 (2)] ) that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.”
9. The above view has been re-affirmed in the case of Delhi Development Authority vs. Kusham Jain and another- [(2016) 16 SCC 254]. It has been held that only when certain contingencies as envisaged under Section 31(2) arise, the compensation amount can be deposited in Court. Para 5 and 6 of the Judgment of Apex Court in the above case are usefully extracted hereunder:
“5. The question of deposit in court arises only in the event of a contingency as provided under Section 31(2) of the Land Acquisition Act, 1894. Section 31(2) of the Act reads as under:
“31. Payment of compensation or deposit of same in court.—(1) * * * If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of compensation in the court to which a reference under Section 18 would be submitted:
“Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount:
Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18:
Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.”
6. There is no case for the appellant that any such contingencies had arisen compelling the Land Acquisition Collector for depositing the amount of compensation in court. Quite strangely, what is deposited in court in the year 2013 is the amount in terms of the award passed in the year 1986, without any interest as provided under the Act for the intervening period. Had there been a deposit in 1986, the landowner could have sought for an investment of the money in interest bearing deposits or other approved securities, as per Section 33 of the 1894 Act. In any case, such deposit in court which is not contemplated or permitted under the Land Acquisition Act, 1894 cannot be treated as a payment of compensation to landowners for the purpose of Section 24(2) of the 2013 Act. The payment of compensation/deposit in court has to be made as per the provisions under the 1894 Act, and, in no other way, as held by this Court in Pune Municipal Corpn. v. Harakchand Misirimal Solanki [Pune Municipal Corpn. v. Harakchand Misirimal Solanki, (2014) 3 SCC 183 : (2014) 2 SCC (Civ) 274] . The payment or deposit having not admittedly been done in terms of the 1894 Act, the deeming provision on lapse under Section 24(2) of the 2013 Act has to operate.”
10. Hence, it becomes abundantly clear that the acquiring authority has to make every effort to tender compensation to land owners/land losers. In the case of Aligarh Development Authority vs. Megh Singh and others – [(2016) 12 SCC 504], the Apex Court has held that the approach required under law is “go and give” and not “come and get” the compensation amount.
11. In these circumstances, the acquisition of land has been rightly declared as having lapsed because of the inaction and omission on the part of the BDA.
12. Apart from the above, there is delay of 242 days in filing these appeals and the explanation offered for the delay as could be seen from the affidavit is that the impugned judgment was passed by the learned single Judge on 07/06/2016 and subsequently after obtaining the certified copy of the judgment, the same was sent to the legal section for securing legal opinion and after taking opinion from the concerned law officer, decision was taken to file the appeal.
13. Learned counsel Sri K.N.Phanindra is justified in inviting the attention of the court to the correspondence made by the Land Acquisition Officer, BDA, to the Additional Chief Secretary, Urban Department, Bangalore, on 11/05/2017, a copy of which is placed for perusal of the Court along with a memo, wherein the BDA has sought permission of the State Government to withdraw the appeal stating the very fact that all the adjoining lands had been excluded from acquisition and that the appeal ought not to have been filed.
14. Apart from the above, absolutely no particulars are furnished as to when the matter was referred seeking legal opinion: when the legal opinion was furnished and when exactly, the decision was taken to prefer the writ appeal. Thus, there is absolutely no explanation offered for the delay. Hence, the application filed seeking condonation of delay of 242 days in filing these appeals cannot be allowed. In the circumstances, both I.A. and the appeals are dismissed.
15. In view of dismissal of the appeals, applications I.A.Nos.3 and 4 filed seeking production of additional documents and for stay respectively are also dismissed.
Sd/- JUDGE Sd/- JUDGE S*