IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 23RD DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL No.710 OF 2018 AND WRIT APPEAL Nos.2578-79 OF 2018 (LA-BDA) BETWEEN:
1. SMT. HUSNARA BEGUM WIFE OF SANAULLA KHAN AGED ABOUT 69 YEARS RESIDING AT NO.248/D ZAMIYA MASJID ROAD ILIYAS NAGAR, J.P. NAGAR BANGALORE-560 078.
2. SMT. SABIHA BEGUM WIFE OF AHMED PASHA AGED ABOUT 48 YEARS RESIDING AT NO.13 26TH B-MAIN ROAD PUTTAIAHNA PALYA 9TH BLOCK, JAYANAGAR BANGALORE-560 069.
3. SRI. SADARUDDIN FAHEEM SON OF LATE K. JUNAED AGED ABOUT 41 YEARS RESIDING AT NO.163, J.M.ROAD ILIYAZ NAGAR, J P NAGAR BANGALORE-560 078.
REPRESENTED BY HIS G.P.A. HOLDER SYED TOUSIFUDDIN SON OF IQBAL PASHA AGED ABOUT 40 YEARS RESIDING AT NO.T2, J.K. RESIDENCY S.R.K. GARDEN B.G. MAIN ROAD BANGALORE-560 046. ... APPELLANTS (BY SRI. HANUMANTHA RAO, ADVOCATE FOR SRI.K. VIJAYA KUMAR, ADVOCATE) AND:
1. THE BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD KUMARA PARK WEST BANGALORE-560 020. REPRESENTED BY ITS COMMISSIONER 2. THE SPECIAL ADDITIONAL LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD KUMARA PARK WEST BANGALORE-560 020.
3. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY/COMMISSIONER DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT VIDHANASOUDHA BANGALORE-560 001. ... RESPONDENTS (BY SRI. K. KRISHNA ADVOCATE FOR RESPONDENTS No. 1 AND 2.
SRI. S.S. MAHENDRA , AGA FOR RESPONDENT No.3 ) THESE APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 27/11/2017 PASSED IN WRIT PETITION NO.60414/2016 AND WRIT PETITION NOS.63502-63503/2016 [LA-BDA] AND GRANT A WRIT OF PROHIBITION OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION, DIRECTING THE RESPONDENT NOS.1 AND 2 AND ITS OFFICIALS NOT TO DEMOLISH THE CONSTRUCTIONS MADE BY THE APPELLANTS AND DECLARE THAT THE 1ST RESPONDENT HAS NO RIGHT WHATSOEVER OVER THE PETITION SCHEDULE PROPERTY BEARING SITE NO.15/1, 15/2, 15/3 COMPRISED IN SY NO.15 OF BYRASANDRA VILLAGE, BEGUR HOBLI, BANGALORE SOUTH TALUK, PURSUANT TO THE NOTIFICATION DATED 19/09/1978 BEARING BDA/SALAO/04PR/(S)/131/77-78 ISSUED UNDER SECTION 17(1) OF THE BDA ACT BY THE RESPONDENT NOS.1 AND 2 AND NOTIFICATION DATED 07/02/1978 BEARING NO.HUD 39 MNJ 78 ISSUED BY THE 3RD RESPONDENT UNDER SECTION 19(1) OF THE BDA ACT BY THE 1ST RESPONDENT SO FOR AS IT RELATES TO THE APPELLANTS SITES.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the impugned order dated 27.11.2017 passed by the learned Single Judge in W.P. Nos.60414 and 63502 – 503 of 2016, by which the petitions were dismissed, the writ petitioners are in appeal.
2. The petitioners filed writ petitions under Articles 226 and 227 of the Constitution of India praying for the following reliefs :-
“a. Issue a writ of prohibition or any other appropriate writ, order or direction, directing the respondent No.1 and 2 and its officials not to demolish the constructions made by the petitioners on the schedule property.
b. Declare that the 1st respondent no right whatsoever over the petition schedule property bearing site No.15/1, 15/2, 15/3 comprised in Sy.No.15 of Byrasandra Village, Begur Hobli, Bangalore South Taluk, pursuant to the Notification dated 19.09.1978 bearing BDA/SALAO/04PR/(S)/131/77-78 issued under section 17(1) of the BDA Act by the Respondent No.1 and 2 (Annexure-A) and notification dated 07.02.1978 bearing No.HUD 39 MNJ 78 issued by the 3rd respondent under section 19(1) of the BDA Act by the 1st respondent (Annexure-B) so for as it relates to the Petitioners sites.”
3. The petitioners state that the land bearing Sy.No.15 measuring 28 guntas of Byrasandra Village belong to one Shingaiah, who had acquired the same under registered sale deed in the year 1939. The petitioners claim that they have purchased the petition schedule property from Shingaiah under registered sale deed dated 21.02.2005. The said survey number 15 of Byrasandra Village and other survey numbers were notified for acquisition by the 1st respondent – BDA under Section 17 of Bangalore Development Authority Act, 1976 (for short ‘the Act’) under preliminary notification dated 19.09.1977 and final notification dated 07.02.1978. It is the claim of the petitioners that even though 28 guntas of land in survey number 15 belonged to Shingaiah - their vendor, was notified for acquisition, only 20 guntas of land was taken possession and 8 guntas of land remained with Shingaiah which is purchased by the petitioners. It is also stated that the respondent – BDA has issued endorsement to the effect that the BDA has not taken possession of 8 guntas of land in Sy.No.15 of Byrasandra Village. From the date of purchase of the petition schedule properties, the petitioners are in possession and enjoyment of the said land. The BBMP has issued katha in their favour and petitioners are paying taxes to the BBMP. Even though katha stands in their name and they are enjoying the property for a very long period, the 1st respondent – BDA in the month of April 2015 resorted to interfere with the petitioners’ peaceful possession and enjoyment of the petition schedule property threatening dispossession and claiming that petition schedule property belongs to the 1st respondent – BDA pursuant to the acquisition. The petitioners claim that they are in settled possession, hence they filed the instant writ petitions praying for the above stated relief contending that the BDA has not taken possession of the petition schedule property and scheme in respect of the survey number in question has lapsed. The learned Single Judge vide impugned order dismissed the writ petitions, holding that the prayer sought by the petitioners is nothing but an indirect attack on the acquisition notifications issued way back in the years 1977 – 78. Hence the petitioners are in appeal.
4. Heard the learned counsel for the appellants and learned counsels for the respondents. Perused the appeal papers.
5. Learned counsel for the appellants would submit that the learned Single Judge committed an error in dismissing the writ petitions without appreciating the grounds raised by the petitioners in the writ petitions. It is specifically contended by the learned counsel for the appellants that the scheme for which acquisition was made has lapsed in respect of the petition schedule property. It is stated that the lands were acquired for Byrasandra Tavarekere Madivala Scheme (for short ‘the BTM Scheme’). It is submitted that the 1st respondent – BDA had notified 28 guntas of land in Sy.No.15 belonging to Shingaiah - the vendor of the petitioners for acquisition. In pursuance to the acquisition the 1st respondent – BDA had taken possession of only 20 guntas and remaining 8 guntas of land remained with Shingaiah, which they had purchased in the year 2005. As the scheme in respect of 8 guntas of land is not implemented till this date, the scheme has lapsed, hence, prays for allowing the appeals.
6. Per contra, learned counsel for the 1st respondent – BDA would submit that the learned Single Judge has rightly dismissed the writ petitions. He submits that the acquisition proceedings has been completed long back and the land vests with the BDA. As such Shingaiah could not have sold the property to the petitioners in the year 2005. The petitioners have no title to the property in question. The scheme as contended by the petitioners has not lapsed since the scheme has been substantially implemented. Thus prays for dismissal of the appeals.
7. Having heard the learned counsels for both the parties and having perused the appeal papers, we are of the view, that the learned Single Judge has rightly dismissed the writ petitions. We find no perversity nor erroneousness in the order passed by the learned Single Judge. The petitioners claim that they are the purchasers of the petition schedule property i.e., sites formed out of Sy.No.15 of Byrasandra Village under registered sale deed dated 21.02.2005 from one Shingaiah. In respect of the land in Sy.No.15 of Byrasandra Village, preliminary notification dated 19.09.1977 under Section 17 of the Act and final notification dated 7.2.1978 under Section 19 of the Act was issued and lands were acquired for formation of BTM Layout. By virtue of acquisition, the land vested with the BDA. The acquisition proceedings was complete by passing award and taking possession long back in the year 1980 itself. As the lands were acquired and it vested with the BDA, Shingaiah could not have sold the petition schedule property and the petitioners could not have purchased the petition schedule property under registered sale deed dated 21.02.2005. The petitioners under the sale deed dated 21.02.2005 have not acquired title at all, since the land belonged to BDA, and as on that date Shingaiah-the vendor of the petitioners was not the owner of the petition schedule property. Moreover, the prayer of declaration sought for by the petitioners would amount to challenging the notifications of acquisition. The acquisition proceedings are complete long back i.e., in the year 1980, whereas the petitioners have approached this Court in the year 2016. At this length of time the petitioners are not entitled for any relief much less, the relief sought for by the petitioners in the writ petitions.
8. The other contention raised by the petitioners relying upon Section 27 of the BDA Act, is that the scheme in respect of the petition schedule property 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.”
A perusal of the above provision would indicate that if within five years from the date of issuance of final notification under Section 19 of the Act, the Authority fails to execute the scheme substantially, the scheme would lapse. Therefore, while examining such contention that scheme has lapsed, we have to examine as to whether the 1st respondent – BDA has substantially implemented the scheme. Under final notification dated 07.02.1978 the BDA had acquired lands for formation of BTM Layout. The total extent acquired under the said notification is more than 1000 acres. The petitioners in the instant writ petitions claim that 8 guntas of land in Sy.No.15 of Byrasandra Village is not taken possession by the BDA and scheme in respect of the said land has lapsed. When the respondent – BDA had acquired very large extent of lands in the year 1978, more than 38 years prior to filing of the writ petitions, and having formed the BTM Layout, it is not open for the petitioners to contend now that the scheme has lapsed. Moreover, petitioners who are purchasers subsequent to completion of acquisition proceedings from Shingaiah, the original owner, have no manner of right to question the acquisition on any of the grounds. No ground is made out by the petitioners to interfere with the order passed by the learned Single Judge accordingly the writ appeals are dismissed.
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JUDGE JUDGE NG* CT:KHV