® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF DECEMBER, 2017 PRESENT THE HON’BLE MR.JUSTICE B.S.PATIL AND THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT APPEAL NOS.4426/2016 AND 2129-2130/2017 (LA-BDA) Between:
Bangalore Development Authority, Kumara Park West, Bangalore – 560 020. Rep by its Commissioner.
…Appellant (By Sri.G S Kannur, Advocate) And:
1. State of Karnataka, Represented by its Principal Secretary, Department of Housing & Urban Development, Vikasa Soudha, Bengaluru – 560 001.
2. Sri.S.K.Parthasarathi Raju, S/o late S.K.Narasaraju, Aged about 52 years, R/a Flat No.T-1, Varsha Residency, Jaladarshani Layout, 2nd main, new BEL Road, Bengaluru – 560 094.
3. Sri.C.Goutham, S/o late H Chandamal, Aged about 59 years, R/a No.97, Bazar Street, Ulsoor, Bengaluru – 560 008.
4. Sri.R.Saikumar Reddy, S/o N.Raghurama Reddy, Aged about 46 years, R/a 859, 14th cross, II Stage, Indiranagar, Bengaluru – 560 038.
…Respondents (By Sri.D.Ashwathappa, AGA for R-1; Sri.M.V.Naveen Reddy, Advocate for R-2 to R-4) These Writ Appeals are filed under Section 4 of Karnataka High Court Act, 1961 praying to set aside the order dated 21.3.2016 passed by the Hon’ble Learned Single Judge in Writ Petition Nos.1041-1043/2016(LA- BDA), and allow the writ appeal by dismissing the writ petition, etc.
These Appeals coming on for Preliminary Hearing this day, B.S.Patil J, delivered the following:-
JUDGMENT 1. These appeals are preferred by the Bangalore Development Authority (BDA) challenging the order dated 21.03.2016 passed by the learned Single Judge thereby holding that in view of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 particularly Section 24(2), the acquisition proceeding in respect of the land in question bearing Sy.No.80/1 measuring 1 acre 26 guntas situated at Thippasandra village, K R Puram Hobli, Bangalore South Taluk stood lapsed. Such a finding is recorded by the learned Single Judge on the ground that neither possession of the land was taken over by the BDA nor compensation was paid to the land owner. Learned Single Judge has also further held that the Scheme for which acquisition proceedings had been initiated had lapsed because of non utilization of the land and non payment of compensation.
2. Briefly stated, facts in these cases disclose that by preliminary notification dated 21.09.1967 issued under the provisions of the City of Bangalore Improvement Act, 1945 followed by a final notification dated 15.07.1971, the land in question was acquired for formation of HAL III Stage Layout. The entire extent sought to be acquired was 460 acres and 11 guntas. By filing the writ petitions out of which the present appeal arises, the land owner sought a declaration that the acquisition proceedings stood lapsed as no action had been taken by the BDA, successor of the CITB to either take possession of the land or pay compensation. It was also contended that in view of Central Act 30/2013 particularly Section 24(2), the acquisition proceedings stood lapsed.
3. In the objections filed by the BDA before the learned Single Judge, the BDA admitted the fact that possession of the land was not taken over and compensation was not paid. Though it was contended in the statement of objections without furnishing any details that award had been belatedly passed, in the course of arguments Sri.Kannur G S, learned counsel for the appellant, on instructions, submits that no such award has been passed in respect of the land in question as on today. Therefore, it is an admitted fact that possession of the land has not been taken over nor any award is passed let alone paying compensation for the acquired land.
4. Indeed it is pointed out by Sri.N.K.Ramesh, learned counsel for the respondents that the land in question measuring 1 acre 26 guntas was excluded while passing the award in respect of other lands on the ground that there was structure in existence and as such possession had not been taken over. As can be seen from Annexure-‘E’ produced along with the writ petition, there is an entry of supplementary proceedings thereof taken by CITB, Bangalore on 10.10.1973. This stands testimony to the fact that neither possession of the land was taken nor any award passed. It also shows that certain structures had been erected in the land in question. It thus follows that neither CITB nor Special Deputy Commissioner, BDA, Bangalore has proceeded with the acquisition proceedings and completed the same by passing award, taking over possession and paying compensation. Hence, in respect of the land in question, acquisition has been abandoned by the beneficiaries/CITB and BDA.
5. It is no longer res-integra that power conferred on any authority be exercised reasonably and reasonable exercise of power includes exercise of the same within a reasonable period. An acquisition proceeding once initiated has to be completed by passing an award and paying compensation followed by taking over possession within a reasonable period. This has to be strictly followed even in the absence of any statutory limit prescribed for passing of award and completing the acquisition proceedings. In this regard, reliance can be placed on the judgment in the case of RAMCHAND & OTHERS Vs. UNION OF INDIA & OTHERS – 1994(1) SCC 44. The Apex Court has laid down in para 14 as under:
“14. The Parliament has recognised and taken note of the inaction and non-exercise of the statutory power on the part of the authorities, enjoined by the provisions of the Act to complete the acquisition proceedings within a reasonable time and because of that now a time-limit has been fixed for making of the award, failing which the entire proceeding for acquisition shall lapse. But, can it be said that before the introduction of the aforesaid amendment in the Act, the authorities were at liberty to proceed with the acquisition proceedings, irrespective of any schedule or time-frame and to complete the same as and when they desired? It is settled that in a statute where for exercise of power no time-limit is fixed, it has to be exercised within a time which can be held to be reasonable. …”
6. In the case of TUKARAM KANA JOSHI & OTHERS THROUGH POWER OF ATTORNEY HOLDER VS. M.I. D.C.
AND OTHERS -AIR 2013 SC 565, the Apex Court has, while dealing with the issue of legal obligation on the part of the authorities to complete such acquisition proceedings and to make payment of requisite compensation has observed in paras 17 & 18 as follows:
“17. The appellants have been seriously discriminated against qua other persons, whose land was also acquired. Some of them were given the benefits of acquisition, including compensation in the year 1966. This kind of discrimination not only breeds corruption, but also dis- respect for governance, as it leads to frustration and to a certain extent, forces persons to take the law into their own hands. The findings of the High Court, that requisite records were not available, or that the appellants approached the authorities at a belated stage are contrary to the evidence available on record and thus, cannot be accepted and excused as it remains a slur on the system of governance and justice alike, and an anathema to the doctrine of equality, which is the soul of our Constitution. Even under valid acquisition proceedings, there is a legal obligation on the part of the authorities to complete such acquisition proceedings at the earliest, and to make payment of requisite compensation. The appeals etc. are required to be decided expeditiously, for the sole reason that, if a person is not paid compensation in time, he will be unable to purchase any land or other immovable property, for the amount of compensation that is likely to be paid to him at a belated stage.
18. While dealing with the similar issue, this Court in K. Krishna Reddy & Ors. v. The Special Dy. Collector, Land Acquisition Unit II, LMD Karimnagar, Andhra Pradesh, AIR 1988 SC 2123, held as under:
“….After all money is what money buys. What the claimants could have bought with the compensation in 1977 cannot do in 1988. Perhaps, not even one half of it. It is a common experience that the purchasing power of rupee is dwindling. With rising inflation, the delayed payment may lose all charm and utility of the compensation. In some cases, the delay may be detrimental to the interests of claimants. The Indian agriculturists generally have no avocation. They totally depend upon land. If uprooted, they will find themselves nowhere. They are left high and dry. They have no savings to draw. They have nothing to fall back upon. They know no other work. They may even face starvation unless rehabilitated. In all such cases, it is of utmost importance that the award should be made without delay. The enhanced compensation must be determined without loss of time….”
7. Similarly, a Division Bench of this Court in the case of SRI.H.N SHIVANNA AND ORS. VS. THE STATE OF KARNATAKA AND ANR. reported in 2013 (4) KCCR 2793 (DB) has held as follows:
“39 ………….As held by the Apex Court in Ram Chand's case, two years is held to be a reasonable time within which a final declaration has to be issued, if there are no hurdles placed in the acquisition by the land owners or if there are no hurdles in law. …………………… Even in the absence of any such prescriptions expressly under the statute, having regard to the fact that the right to property is a constitutional right and the person whose land is sought to be acquired is entitled to compensation at the market rate, such a compensation has to be paid to him at the earliest and therefore, the power of acquisition should be exercised within a reasonable time so that the person who lost the land is duly compensated at the earliest point of time.”
8. In the present cases, though final notification was issued in the year 1971 so far, neither award has been passed nor possession has been taken over by paying compensation. Therefore, the acquiring body has neither exercised its powers in a reasonable manner nor has it completed the acquisition proceeding within a reasonable period. Hence, acquisition having been abandoned stands lapsed on account of omission and commission on the part of the CITB/BDA in respect of writ petitioners/respondents’ herein in so far as the land is concerned.
9. At this stage, as rightly contended by Sri.Kannur G S, learned counsel appearing for BDA, the observations made and finding recorded by the learned Single Judge stating that acquisition proceedings stood lapsed on account of the provisions contained in Section 24(2) of Central Act 30/2013 or for that matter, the Scheme had lapsed in light of the provisions contained under the BDA Act are larger issues which may have to be decided in appropriate case and hence, they have to be kept open. We agree with the contention of Sri.Kannur G S, in this regard. These legal questions are kept open to be decided in appropriate proceedings. Hence, the question of law regarding applicability of Section 24 of Central Act 30 of 2013 to the acquisition made under the BDA Act is kept open to be decided in an appropriate case.
10. It is also brought to our notice that in respect of the abutting land which is part of the same survey number acquired for the same purpose under the same notification by the BDA, the owner of the said land had filed W.P.Nos.3596-97/2014. The said writ petitions were allowed on 26-02-2014 declaring that the land having not been utilized for the purpose for which it was acquired and since no award had been passed, the acquisition proceedings could not be permitted to be pursued. Admittedly, no appeal is filed against the said order passed in respect of the land which is situated immediately abutting the land in question. Indeed the proceedings maintained by BDA produced at Annexure-T discloses that a conscious decision was taken by the BDA not to prefer any appeal keeping in mind various facts such as non passing of award, not taking over possession of land and existence of structure thereon.
11. We find no justification for the BDA to single out the petitioners/respondents herein and choose to file an appeal in their case, when the appellants herein were similarly placed as that of the adjoining land owner. Therefore, these appeals deserve to be dismissed. Accordingly, subject to the observations made above these appeals are dismissed.
12. It is declared that the acquisition proceedings in respect of the land in question has stood abandoned and consequently lapsed.
In view of the disposal of the main appeal, I.A.No.2/2016 does not survive for consideration. Hence, I.A.No.2/2016 is dismissed.
Sd/- JUDGE dn/-
Sd/- JUDGE