IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION Nos.10250-10251 OF 2016 (BDA) Between:
1. Smt.Gangamma, W/o. Late N.Shyam, Aged about 72 years, (Senior citizenship not claimed) 2. Smt.Vijay.D.Achari, W/o. Late B.S.Suresh, Aged about 38 years.
Amended as per the order dated 29.10.2018.
Both are residing at No.25/26, Venkatappa Street, Chikkamavahalli, Bengaluru-560 004. ... Petitioners (By Sri. Ramesha.M.N, Advocate) And:
1. The Commissioner, Bangalore Development Authority, Kumara Park West, Bengaluru-560 020.
2. The Assistant Executive Engineer, No.3, South Sub Division, Bangalore Development Authority, B.S.K. 2nd Stage, Bengaluru-560 070. ... Respondents (By Sri. Ramanjaneya Gowda, Advocate) These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash “Annexure-A” the impugned notice dated 09/02/2016 vide impugned notice No.BDA/AEE-3(S)/T-879/2015-2016 is issued by 2nd respondent by issue of writ certiorari or any other appropriate writ or order or direction.
These Writ Petitions coming on for Orders this day, the Court made the following:
ORDER Learned counsel for the petitioners asserts and the learned panel counsel for respondent Nos.1 and 2 does not dispute that the subject matter of these Writ Petitions is akin to the one in cognate Writ Petition Nos.10248-10249/2016 (BDA-RES) that has been disposed off by Co-ordinate Bench of this Court vide order dated 05.07.2018, which in turn refers to the judgment dated 08.12.2011 in W.P.No.19792/2010. Paragraph Nos.4 and 5 of the said judgment reads as under:
“4. The Co-ordinate Bench of this Court has been pleased to observe as follows in para Nos.18 to 21:
“18. This Court in the case of B.Krishnappa vs. Bangalore Development Authority & Ors. in W.P.No.1739/2008 disposed of on 13.07.2011 has also taken the considered view that if the BDA shows the lethargic attitude in the implementation of the scheme, its endeavours to cling on to the acquisition are only to be deprecated. In the said case, this Court has also come down heavily on the misadventure of the respondents to implement the scheme in truncated meager extent, leaving out the larger area.
19.This Court also finds it hard to accept the submission of the respondents that the possession of the land is taken on 29.12.1995, because the award itself is passed on 28.08.2000. As the provisions of Section 16 of the Land Acquisition Act are made applicable to the acquisition of the land under BDA Act by Section 36 of the BDA Act, taking possession of the land and its vesting in the Government could be only after passing the award. Thus when the award itself was not passed as on 29.12.1995, the possession could not have been taken.
20.Yet another circumstance which cannot be ignored is that the respondents claim that the possession of the land is taken on 29.12.1995. It is not forthcoming as to why the Government took 14 years to publish its claimed act of taking the possession. The 16(2) notification is published only on 18.08.2009, though the Government claims to have taken the possession on 29.12.1995.
21.No explanation is forthcoming as to why the respondents took 6 years for passing the award after the issuance of the final notification. At every stage, what can be marked about the conduct of the respondents is the lethargy.”
and thereafter, was pleased to hold that the scheme for formation of Banashankari 5th Stage has lapsed insofar as it pertains to the land in question. Hence, the said findings came to be assailed before the Division Bench. The Division Bench at para.9 has confirmed the findings of the learned Single Judge, which reads as follows:
“9. An affidavit is also filed now to show that possession is taken in 1995 for formation of Banashankari 5th Stage in the year 1999-2000. The land acquired has not been handed over to Engineering Section for formation of layout due to one litigation of others and only in 2008, a portion of the land has been handed over to the Engineering section for the formation of layout. It is admitted in the affidavit that no layout is formed in Sy.No.19 measuring 3acres 15guntas. When the applicant is not pursuing its remedy in the remaining extent of the same survey number, BDA is intending to contend that writ petitioner’s property measuring 30 guntas alone is required. It shows hostile discrimination of the BDA. We could have appreciated the case of the BDA that BDA is intending in forming layout in the entire survey number, but what is contended by the BDA is that only 30 guntas of land is acquired. But no explanation is offered by the BDA what prompted the BDA in not considering remaining extent of land in the same survey number. Considering the existence of the buildings in the property of the writ petitioner, it would be inappropriate for us to interfere with the order of the learned Single Judge. Even though the respondent-writ petitioner is a subsequent purchaser, since possession was not taken at any point of time by the BDA, as on the date of alleged taking possession, the owner of the property Lingagowda was not alive and if the respondent-writ petitioner is a bonafide purchaser and when large extent of area has not been utilized by the BDA for formations of layout including the land in the very same survey number of the respondent’s vendor, we are of the view that the appellant has not made out a case to interfere with the order of the learned Single Judge.”
5. In that view of the matter, the instant petitions are allowed in terms of the order/judgment of this Court rendered in W.P.No.19792/2010 disposed of on 08.12.2011 and consequently, it is held that the scheme for formation of the Banashankari 5th Stage has lapsed insofar it pertains to land in question, that is, the petitioner’s land.
There shall be no order as to costs.”
2. Learned counsel for the petitioners submits that the petitioners are also entitled to the grant of similar relief, there being no derogatory circumstances that justify denial of the same. There is force in this submission.
In the above circumstances, these Writ Petitions succeed in part and are disposed of in terms of the orders mentioned above.
Sd/- JUDGE DS/-