IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.Nos.20053-54/2015 (LA-BDA) BETWEEN 1. BHAWARLAL H RANKA S/O LATE HASTIMALRANKA AGED ABOUT 72 YEARS RESIDING AT NO. 31 III FLOOR, RANKA CHAMBERS SAMPANGIRAMASWAMY TEMPLE STREET BENGALURU-560052 2. KANTILALBAFNA S/O LATE GAMBHIRMAL BAFNA AGED ABOUT 68 YEARS RESIDING AT NO. 31 III FLOOR, RANKA CHAMBERS SAMPANGIRAMASWAMY TEMPLE STREET BENGALURU-560052 ... PETITIONERS (BY SRI S.M.CHANDRASHEKAR, SENIOR ADVOCATE FOR SRI VASANTH MADHAV S., ADV.) AND 1. THE GOVERNMENT OF KARNATAKA BY ITS PRINCIPAL SECRETARY DEPARTMENT OF URBAN DEVELOPMENT, VIKAS SOUDHA BENGALURU-560001 2. THE COMMISSIONER BENGALURU DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD BENGALURU-560020 3. ENGINEER MEMBER BENGALURU DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD BENGALURU-560020 4. THE SPECIAL LAND ACQUISITION OFFICER BENGALURU DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD BENGALURU-560020 5. SRI K SHYAMARAJU S/O K RAMARAJU AGED 69 YEARS RESIDENT OF NO. 150/B 10TH MAIN ROAD, RAJMAHAL VILAS EXTENSION BENGALURU-560080 ... RESPONDENTS (BY SRI VIJAY KUMAR A. PATIL, AGA FOR R1 SRI JAYAKUMAR S. PATIL, SENIOR ADVOCATE FOR SRI KRISHNA MURTHY. V, ADV. FOR C/R-5 SRI D.N.NANJUNDA REDDY, SENIOR ADVOCATE FOR SRI B.S.SACHIN, ADV. FOR R2 TO R4) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE FINAL NOTIFICATION ISSUED BY THE R-1 DT.18.6.2014 (ANNX-G) IN RESPECT OF THE LANDS OF THE PETITIONER IN SY.NO.103/3 MEASUIRNG 1 ACRE 24 GUNTAS OF JAKKUR VILLAGE, YELAHANKAHOBLI, BENGALURU NORTH TQ.; QUASH THE SALE DEED DOCUMENT NO.1616/2013-14 DT.14.8.2013 (ANNX-F) EXECUTED BY THE G.D.A. (R-2 TO 4) ALLOTTING 2307 SQ. MTRS. OUT OF THE LANDS OF THE PETITIONER IN SY.NO.103/3 MEASURING 1 ACRE 24 GUNTAS OF JAKKUR VILLAGE, YELAHANKA HOBLI, BENGALURE NORTH TQ TO THE R-5 SRI K.SHYAMARAJU.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 06.09.2017, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Petitioners claiming right, title and interest over land bearing Sy.No.103/3 measuring 2 acres 24 guntas situated at Jakkur Village, Yelahanka Hobli, Bengaluru North Taluk, have filed these writ petitions challenging acquisition of the land for the benefit of Bangalore Development Authority (for short ‘BDA’) vide final notification dated 18.06.2014. They have also sought for a declaration that action of BDA and its authority in allotting the land in question to a third party – respondent No.5 is illegal. A direction is also sought to the BDA to pass orders in compliance with the direction issued by this Court in W.P.Nos.21761-62/2012 dated 03.10.2012.
2. Facts relevant for the purpose of this case, stated in nutshell are as under:
3. For the purpose of formation of Arkavathi Layout, a preliminary notification was issued on 03.02.2003 proposing to acquire the land in question. This was followed by a final notification issued by the State Government on 23.02.2004. Out of total 2 acres 24 guntas of land comprised in Sy.No.103/3 an extent of 1 acre 24 guntas with the following boundaries was acquired as per the final notification East by: Sy.No.97, West by: Border (Village border) North by: Sy.No.103/1, South by: Sy.No.103/3 4. Several owners of the acquired lands challenged the acquisition. Their petitions were allowed and acquisition proceeding was quashed. Respondents herein preferred W.A.No.2624/2005. The Division Bench set aside the order of learned Single Judge and upheld the acquisition proceeding. However, the Division Bench gave specific directions to respondents in the following terms:
“Insofar as the land owners excluding the site owners, are entitled to the following reliefs:
(i) All the petitioners who are the land owners who are seeking dropping of the acquisition proceedings in so far as their respective lands are concerned, on the ground that (a) their lands are situated within the green belt area (b) they are totally build up (c) properties wherein there are buildings constructed by charitable, educational and/or religious institutions (d) nursery lands (e) who have set up factories (f) their lands are similar to the lands, which are permitted to make appropriate application to the authorities seeking such exclusion and exemption and producing documents to substantiate their contentions within one month from the date of this order.
It is made clear that the BDA shall consider such request keeping in mind the status of the lands as on the date of Preliminary Notification and to exclude any developments, improvements, constructions put up subsequent to the Preliminary Notification and then decide whether their cases are similar to that of the land owners whose lands are notified for acquisition, notified and whose objections were upheld and no final notification is issued.
In the event the BDA comes to the conclusion that the lands of those persons are similarly placed, then to exclude these lands from acquisition.
(ii) Petitioners who are interested in availing this benefit shall make appropriate application within 30 days from the date of this order and thereafter the BDA shall give notice to those persons, hear them and pass appropriate orders expeditiously.
(iii) Till the aforesaid exercise is undertaken by the BDA and the applications filed by the petitioners either for allotment of site or for de- notifying or exemption sought for are considered their possession shall not be disturbed and the existing construction shall not be demolished. After consideration of the applications, in the light of the aforesaid directions, if the lands are not excluded then the BDA is at liberty to proceed with the acquisition”
5. This order was challenged before the Apex Court. The Apex Court upheld and affirmed the directions issued by the Division Bench with certain clarifications in the case of BONDU RAMASWAMY VS. BANGALORE DEVELOPMENT AUTHORITY – (2010) 7 SCC 129. As the adjoining lands of petitioners had been already developed and several educational institutions, apartments had come up in the vicinity and as only a portion of their lands were proposed for acquisition, it was in no way suitable for formation of layout by the BDA. A detailed representation was submitted by petitioners on 28.02.2006 seeking to drop the acquisition proceeding in respect of their property.
6. Without bestowing proper consideration on the representation submitted, an endorsement was issued on 17.06.2006 stating that land in question was required for formation of Arkavathi Layout.
7. Petitioners along with certain others filed W.P.No.9232/2006 and connected petitions before this Court. By order dated 23.08.2006 the writ petition was allowed. This Court specifically observed that the endorsement issued by the BDA was the result of non-
application of mind inasmuch as it did not specify what was in existence on the spot in question and that mere observations made to the effect that petitioners did not fall under any of the guidelines issued by the Court for dropping the acquisition proceeding would not be sufficient. This Court also held that case of each of petitioners had to be individually considered upon spot inspection.
8. The Land Acquisition Officer was directed to redo the exercise after holding spot inspection. In para 4 of the said order, following direction is issued:
“The concerned Land Acquisition Officer of the BDA shall hold spot inspection after notice to petitioners and thereafter proceed in accordance with law. Petitioner as well as BDA are directed to maintain status quo with regard to the properties in question during such consideration. No fresh construction should be made by petitioners in the meanwhile”
This Court also directed that the proceeding should be completed as expeditiously as possible, but not later than within an outer limit of six months from the date of receipt of a copy of the order. This order is produced along with writ petition at Annexure-A.
9. Despite such a direction issued by this Court, BDA did not consider the matter. Petitioners applied under the Right to Information Act. Petitioners were informed that a resolution was passed by the BDA on 23.11.2010 but the said resolution did not specify the consideration of the representation. Although the Special Land Acquisition Officer had proposed for dropping the land belonging to petitioners from acquisition, without application of mind BDA refused to drop the acquisition.
10. Aggrieved by the said resolution, petitioner filed yet another writ petition in W.P.Nos.21761-762/2012. The said writ petitions were disposed of on 03.10.2012 with a direction to the BDA to consider the case of petitioners in respect of the land in question. This order is produced at Annexure-B to the writ petitions. This Court directed personal hearing to be afforded to petitioners.
11. Petitioners appeared and filed representation giving all particulars. However, there was no response from the BDA. Hence, they filed another application under Right to Information Act on 09.01.2013. The BDA issued certified extract of its proceedings along with a sketch showing the location of the land bearing Sy.No.103/3 notified for acquisition and its surrounding lands. Petitioner has produced the sketch at Annexure-C1. This bears the seal and signature of the Land Acquisition Officer, BDA, Bengaluru. Proceedings of the BDA are produced at Annexure-D.
12. Perusal of Annexure-C1 sketch discloses that, to the North of the subject land Sy.No.103/3 exists, there is a school building and a play ground; beyond that in Sy.No.103/2 there is an apartment. To the West, Sy.No.97/2 is located which is not under acquisition; another Sy.No.98/1 also lies to the West which is also excluded from acquisition while issuing final notification. Towards East, un-acquired portion of Sy.No.103/3 belonging to petitioners is located. A perusal of this sketch would show that on all sides of the acquired land no portion of layout has been formed and the subject land is located amidst either developed lands or lands excluded from acquisition. It is for this reason in Annexure-D note of the BDA after referring in detail to the directions issued by this Court and the guidelines fixed for excluding the lands from acquisition recommendation was made as per the directions of the Division Bench for excluding this land specifically noting that the subject land fell within the parameters of the guidelines issued by the Division Bench of this Court. This recommendation of the Land Acquisition Officer was placed for consideration before the BDA.
13. At that stage, to the surprise of petitioners, they learnt that a third party was trying to stock materials to put up a compound wall. Petitioners filed a complaint before the BDA and also before Amruthahalli police on 12.03.2015. On further enquiry, they learnt that BDA had executed a registered sale deed dated 14.08.2013 in favour of one K. Shyamaraju - respondent no.5 herein in respect of 2307 square meters of land comprised in Sy.No.103/3 showing it as located in 7th Block Arkavathi Layout having been assigned Site No.3218/A. This conduct of the BDA was in total defiance of the order passed by this Court directing the BDA to consider the request of petitioners for excluding their land from acquisition in terms of the direction issued by the Division Bench of this Court.
14. On further enquiry petitioners learnt that 1st respondent – State Government had issued final notification dated 18.06.2014. Therefore, without any other option, petitioners have been constrained to approach this Court challenging the said final notification and seeking other consequential reliefs as mentioned above.
15. Application – I.A.1/17 seeking amendment of the writ petition has been filed by petitioners to lay a challenge to the resolution dated 11.09.2015 passed by the BDA vide Annexure-J recommending continuation of acquisition proceeding in respect of the land in question. Certain additional grounds are raised and additional facts are narrated in support of the additional challenge made. Said amendment was necessitated as resolution Annexure-J was passed by the BDA after the writ petition was filed. Petitioners want to demonstrate that Annexure-J resolution passed by the BDA was contrary to the recommendation made by the Special Land Acquisition Officer who had rightly opined that the subject land fell within the parameters fixed and direction issued by the Division Bench for dropping the acquisition proceedings.
16. As per Annexure-J resolution, BDA wanted to validate the action taken ignoring the direction issued by this Court, in executing the sale deed in favour of respondent No.5 without taking any decision on the representation submitted by petitioners as directed by this Court. Hence, I.A.1/2017 is allowed.
17. Statement of objections and additional statement of objections have been filed by respondents 2 and 3. The BDA contends that action has been taken in accordance with law and in terms of the direction issued by this Court; indeed possession of the property had also been taken as the BDA had already passed an award which was duly approved on 24.08.2004 and therefore, petitioners had no locus standi to question the acquisition proceeding as the land had been already vested with the State Government. Though the Land Acquisition Officer had submitted a report recommending deletion of the land, the committee after verifying the report of the Land Acquisition Officer rejected the recommendation on the ground that surrounding lands viz., remaining portion of Sy.No.103/3 situated to the Eastern side had been acquired by Air Force institute and other surrounding lands were acquired for formation of Arkavathi Layout and therefore, the land was very much necessary for implementation of the scheme.
18. Respondent No.5 has also filed statement of objections. He has contended that he has invested lakhs of rupees for putting up compound enclosing the entire site and has also constructed a shed and dug up a borewell in the site. He urges that he has been in possession and enjoyment of the site. It is also contended by 5th respondent that the effective final notification so far as petitioners’ land was dated 23.02.2004 and not the one issued in the year 2014. 5th respondent has asserted that the case of petitioners does not fall under the category specified by the Division Bench of this Court and petitioners were not entitled for exclusion of their land from the notification.
19. Learned Senior counsel for petitioner - Sri S.M.Chandrashekar has urged that conduct of the BDA is highly deprecable as it has violated the directions issued by this Court inasmuch as without considering the case of petitioners on the basis of the guidelines issued by the Division Bench it has proceeded to execute the sale deed in favour of 5th respondent. He has urged that BDA was not justified in rejecting the claim of petitioners for deletion of the land.
20. Inviting the attention of the Court to Annexure-J resolution dated 11.09.2015 produced along with the application – I.A.1/17 seeking amendment of the writ petition thereby rejecting the request of petitioners for exclusion of land from acquisition, he points out that it disclosed brazen act on the part of the BDA to circumvent the directions of this Court on an untenable ground stating that sites had already been formed and that it had been allotted to others and therefore, case of petitioners could not be considered for exclusion of their land. According to him this is a case of clear violation of the general directions issued by the Apex Court and the specific directions issued by this Court. It is his submission that conduct and action of the BDA showed total absence of bonafides. He also points out that as per the stand taken by the BDA, compensation amount was allegedly kept in RD account of the BDA. He urges that if indeed compensation had been determined, the same could have been offered or paid to petitioners. It is his submission that as no compensation has been paid, acquisition itself is not completed in terms of the judgment of this Court in W.P.No.18676/2007 disposed of on 24.03.2008.
21. Sri Nanjunda Reddy, learned Senior counsel appearing for the BDA submits that except two portions measuring 20 guntas and 29 guntas in Sy.Nos.97/2 and 97/1, rest of the lands on the Western side have been developed so also on the northern side. He also submits that as the land belonging to 5th respondent had been utilised in favour of Metropolitan House Building Co- operative Society, in lieu of the said area land in question was allotted to 5th respondent under incentive scheme. He submits that as per the judgment in the case of BONDU RAMASWAMY VS. BANGALORE DEVELOPMENT AUTHORITY – (2010) 7 SCC 129 particularly paragraph 145, no vacant land had been deleted and therefore, said decision does not apply to the facts of the case.
22. Sri Jayakumar S. Patil, learned Senior Counsel appearing for respondent No.5 refers to the map produced at Annexure-R1 which was approved on 21.03.2014 to contend that no adjoining land was deleted and none of the directions of the Supreme Court in Bondu Ramaswamy’s case, referred to supra had any application to the case of petitioners.
23. Having heard the learned counsel for all parties, the points that arise for consideration are:
(a) Whether the action of the BDA in issuing the impugned final notification dated 18.06.2014 notifying the land bearing Sy.No.103/3 measuring 1 acre 24 guntas at Jakkur Village, Yelahanka Hobli, Bengaluru North Taluk for formation of Arkavathi Layout is valid and justifiable in law?
(b) Whether the BDA has acted in accordance with law in passing Annexure-J resolution and whether the said resolution is tenable in law?
(c) Whether the BDA has acted illegally and in defiance of the proceedings pending before this Court in relation to subject land and the order passed by this Court in W.P.Nos.21761-762/2012 dated 03.10.2012 produced at Annexure-B to the writ petition, in executing the sale deed in favour of respondent No.5 and in making other allotments in respect of the land in question?
24. All the above points are interconnected. Therefore, they are considered together.
25. Undeniable facts are that first final notification acquiring various lands including 1 acre 24 guntas of the schedule land was issued on 23.02.2004. Petitioners filed W.P.No.50466/2004 on 18.12.2004. Interim order was granted by this Court on 23.12.2004. Subsequently, the acquisition was quashed by the learned Single Judge on 15.04.2005. In W.A.No.2624/2005 order of the learned Single Judge was set aside. Certain guidelines and parameters were fixed and direction was issued to the BDA to take action for consideration of the case of petitioners for deletion of their lands. This order of the Division Bench was upheld by the Apex Court with certain modifications and clarifications. It is thus clear that petitioners were clothed with a right to submit representation to the BDA. The BDA was under an obligation to consider the said representation keeping in mind the directions issued by the Division Bench of this Court as clarified and modified by the Apex Court in Bondu Ramaswamy’s case.
26. The BDA had once issued an endorsement on 17.06.2006 rejecting the request of petitioners. In W.P.No.9232/2006 and other connected cases disposed of on 23.08.2006 the said endorsement was set aside with a specific direction to the Land Acquisition Officer to conduct spot inspection and redo the exercise by considering the case of each of the petitioners individually.
27. The BDA again passed a resolution on 23.11.2010 rejecting the request holding that lands were required for formation of layout. Petitioners again challenged the same in W.P.Nos.21761-762/2012. An interim order of status quo was granted in this writ petition on 13.09.2012. The writ petition was disposed of on 03.10.2012 with a direction to the BDA that spot inspection shall be conducted in the presence of petitioners after due notice to them and also to consider the representation submitted.
28. Thereafter, the Land Acquisition Officer conducted spot inspection in the presence of petitioners, drew a spot mahazar and sketch vide Annexure-C1 and submitted a detailed report on 27.11.2012 recommending de- notification specifically holding that schedule property fell within the parameters of guidelines issued by the Division Bench.
29. On 13.02.2013 BDA passed a resolution bearing No.79/2013 dropping almost more than 400 acres of land from the purview of acquisition. As far as the subject land is concerned, BDA did not consider the matter and issue any endorsement despite direction issued by this Court. Instead, on 14.08.2013 BDA executed a registered sale deed in favour of respondent No.5 to an extent of 2307 square meters of land and thereafter final notification was published on 18.06.2014 again modifying the scheme of Arkavathi Layout wherein the land of petitioner is shown as acquired.
30. These writ petitions are filed on 08.05.2015. On 26.05.2015 an interim order is passed against respondent No.5 ‘restraining him from changing the nature of property or carrying out any further development of construction and if any such development was made, the same shall be at his risk’. It is only thereafter on 11.09.2015 the BDA passed the resolution rejecting the recommendation made by the Special Land Acquisition Officer. On 19.04.2017 another interim order is granted by this Court restraining the BDA from altering / interfering with the property in question. This Court also extended the interim order granted on 26.05.2015.
31. It is thus evident that BDA has not followed the direction issued by this Court. It has ignored the report submitted by the Special Land Acquisition Officer who has clearly stated that the land reserved to be excluded from acquisition having due regard to the guidelines and parameters fixed by the Division Bench of this Court and also the Apex Court. There was absolutely no room or occasion for the BDA to take over possession of the land because interim order of status quo was in existence right from the year 2004 and the subsequent direction of the Division Bench made it clear that there was an obligation cast on the BDA to examine the entitlement of petitioners for exclusion of their land from acquisition before proceeding further in the matter. This was followed by a specific direction issued in the writ petition to BDA while setting aside endorsement issued stating that the land was required for formation of layout.
32. It is not known how the BDA could come up with a stand in the present writ petition stating that it had already taken over possession of land and had allotted it to somebody else. This is nothing but blatant disregard to the orders passed by this Court to which the BDA is a party. The BDA cannot be permitted to justify its stand which will run directly contrary to the directions issued by this Court.
33. As rightly contended by learned Senior counsel for petitioners, only to overcome the directions of this Court in W.A.Nos.2624/2005 and in order to cover up its illegal act in allotting major portion of land comprised in the survey number in question in favour of 5th respondent, followed by another brazen act of execution of sale deed in favour of 5th respondent ignoring the directions of this Court, BDA has come up with a story that possession of land had already been taken and that the recommendation of the Special Land Acquisition Officer had been rejected as it did not fall within the parameters of the Division Bench order.
34. If action of the BDA was transparent, straightforward and honest, it ought to have first passed a resolution rejecting the recommendation made by the Land Acquisition Officer assigning reasons as to how the case of petitioners did not fall within the parameters of the judgment of the Division Bench and of the Apex Court and thereafter issued an endorsement to petitioners thereby complying with the directions of this Court and only thereafter it could have proceeded to allot this land to third parties. In the instant case, sale deed is executed in favour of 5th respondent on 14.08.2013. No order was passed with regard to the recommendation made by the Land Acquisition Officer in respect of petitioners’ land nor any endorsement was issued to petitioners. After the sale deed was executed in favour of 5th respondent on 14.08.2013, final notification was issued on 18.06.2014. After this writ petition was filed, BDA wakes up and passes a resolution dated 11.09.2015 thereby rejecting the recommendation of the Special Land Acquisition Officer.
35. Conduct of the BDA as reflected in its action referred to hereinabove amply demonstrates that it has acted in bad faith and in defiance of the directions of this Court. Its actions are arbitrary and prejudicial to the interest of petitioners who have been knocking at the doors of this Court seeking justice. It could not have executed the sale deed in favour of 5th respondent in respect of the land in question without completing the exercise as directed.
Indeed, Annexure-C1 sketch is prepared pursuant to the direction of this Court by the Land Acquisition Officer after conducting spot inspection. This sketch clearly demonstrates that to the North of Sy.No.103/3 belonging to petitioner (subject land) there is a school building, play ground and apartments which are all part of Sy.No.103/2. To the East of land in question, Sy. Nos. 97/2 and 98/1 are located. Portions of these survey numbers immediately abutting the land in question are not acquired. To the South also there is no land that is acquired for the purpose of layout. So far as the Western side is concerned, the land forming part of the subject land which is not acquired is in existence. It is thus clear that from all sides the land in question is surrounded by either constructed portions like school building, apartments or unacquired lands.
36. Though it is urged by learned counsel for the BDA and the counsel appearing for 5th respondent that towards the Southern side a road has been formed which leads to the layout, learned counsel for petitioner has clarified it stating that a road has been formed by the BBMP in a portion of petitioner’s land Sy.No.103/3 and it is not part of the acquired land by the BDA in the layout formed. Towards the Southern side it is only a road that passes and no layout is formed. The land of petitioner which has been sandwiched between un-acquired lands including some developed portions where school and apartments had come up (Northern Portion), satisfies the parameters prescribed in the Division Bench judgment as modified and clarified by the Apex Court.
37. Though it is sought to be contended by the learned counsel for the BDA that even in the Northern portion of subject land acquisition had been completed and sites had been formed, the BDA has not produced any material to show that sites had been formed in the Northern portion of the land and had been allotted to any third parties. Indeed this submission is contrary to the sketch prepared by the Land Acquisition Officer vide Annexure-C1 pursuant to the direction issued by this Court after conducting spot inspection. Therefore, the decision taken by the BDA to notify the land in question for acquisition is illegal and hence, unsustainable.
38. Hence, the impugned final notification vide Annexure-G and the impugned decision of the BDA vide Annexure-J are quashed insofar as they pertain to land bearing Sy.No.103/3 measuring 1 acre 24 guntas situated at Jakkur Village, Yelahanka Hobli, Bengaluru North Taluk. Action of the BDA in allotting the land and executing the sale deed in favour of 5th respondent without even considering the direction issued by this Court in W.P.Nos. 21761-762/2012 dated 03.10.2012 vide Annexure-B is declared as illegal. Consequently, no rights will flow in respect of the land in question in favour of 5th respondent. Allotments, if any made by the BDA in favour of any other third party during the pendency of these writ petitions will have no consequence and will not convey any right.
39. Accordingly, points raised above are answered in favour of petitioners. Writ petitions are allowed.
Having regard to the conduct of the BDA as adverted to in the course of this order, the BDA is directed to pay cost of Rs.25,000/- to petitioner.
Sd/- JUDGE VP