IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.Nos.43437-43441/2016 & W.P.No.44914/2016 (LA-BDA) BETWEEN 1. SMT.JAYALAKSHMI W/O LATE M.MUNISWAMY, AGED 49 YEARS, R/O D.NO.419, 1ST MAIN ROAD, HEBBALA, BANGALORE-560 024.
2. SRI.M.SHANKARAPPA S/O LATE MUNIDASAPPA, AGED ABOUT 65 YEARS, R/O NO.83, 5TH CROSS, HEBBALA, BANGALORE-560 024.
3. SRI.H.D.MUNISWAMAMAPPA, S/O LATE HONNURAPPA @ DOODDA ABBAYYA, AGED ABOUT 68 YEARS, R/O NO.248, NAVANEETH NILAYA, 4TH MAIN, COFFEE BOARD LAYOUT, HEBBALA KEMPAPURA, BANGALORE-560 024.
4. SMT.H.C.MADHUMATHI D/O LATE H.D.CHIKKAMUNIYAPPA, AGED ABOUT 30 YEARS, R/O DODDA ABBAYYAPPA GARDEN, BEHIND ESHWARA TEMPLE, HEBBALA, BANGALORE-560 024.
5. SRI.H.D.DASAPPA S/O LATE HONNURAPPA @ DODDA ABBAYYA, AGED ABOUT 74 YEARS, R/O NO.421, 1ST MAIN ROAD, HEBBALA FARM POST, HEBBALA, BANGALORE-560 024.
6. SRI.MOHANLAL P JAIN SINCE DEAD BY HIS LR SMT.TULSIBAI, W/O LATE MOHANLAL P JAIN, AGED ABOUT 74 YEARS, R/O NO.26, SHANKESHWAR, 2ND CROSS, SHANKAR MUTT ROAD, CHIKKANNA GARDEN, BANGALORE. ... PETITIONERS (By Sri D.R.RAVISHANKAR, ADV.) AND 1. THE BANGALORE DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE-560 020, REP BY ITS COMMISSIONER.
2. THE SPEL LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY KUMARA PARK WEST, BANGALORE- 560 020. ... RESPONDENTS (By Sri VIKRAM HULIGOL, ADV. FOR R1 & R2; Sri GOUTHAMDEV C.ULLAL, ADV. FOR R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE ACQUISITION PROCEEDINGS IN RESPECT OF THE LAND BEARING SY.NO.94/1, [MEASURING 21 GUNTAS] OF HEBBALA VILLAGE, KASABA HOBLI, BANGALORE NORTH TALUK BANGALORE DISTRICT AS LAPSED UNDER SECTION 27 OF THE BANGALORE DEVELOPMENT ACT ANNEX-A & B; AND TO DECLARE THAT THE ACQUISITION PROCEEDINGS PURSUANT TO THE PRELIMINARY NOTIFICATION DTD.30.8.90 AND THE FINAL NOTIFICATION DTD.18.1.95 VIDE ANNEX-A & B RESPECTIVELY, HAVE LASPED UNDER SECTION 24[2] OF THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 [ALSO LAND ACQUISITION ACT, 2013]; AND TO QUASH RESOLUTION DTD.5.7.2014 ISSUED BY THE RESPONDENT VIDE ANNEX-K, AND ETC.
THESE PETITIONS COMING ON FOR FURTHER SUBMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Petitioners have filed these writ petitions under Article 226 of the Constitution of India seeking a declaration that acquisition proceedings in respect of land measuring 21 guntas comprised in Sy.No.94/1 situated at Hebbala Village, Kasaba Hobli, Bengaluru North Taluk have lapsed under Section 27 of the Bangalore Development Authority Act (for short, ‘the BDA Act’) and Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Resettlement and Rehabilitation Act, 2013 (for short, ‘the new Act’). They have also sought for quashing the resolution dated 05.07.2014 passed by the BDA in Subject No.124/2013 vide Annexure-K whereby a decision has been taken to reject the request made by the petitioners for excluding the land in question from acquisition on the ground that as award had been already passed on 08.01.1996 and possession of land had been already taken over by issuing notification under Section 16(2), there was no valid reason for consideration of the request of petitioners.
2. Undisputed facts are that the land in question along with several lands was acquired for the purpose of formation of 150 feet outer ring road by issuing final notification dated 18.01.1995. The total extent of land notified for formation of outer ring road of Hebbal village was 7 acres 31 guntas. Out of the same, only 5 acres 5 guntas of land were utilised for formation of outer ring road. Remaining 2 acres 26 guntas was not utilised.
3. Unutilised lands in several survey numbers of Hebbal were given back to the owners pursuant to the resolution of BDA dated 04.04.1997 vide resolution No.109/1997. A copy of this resolution is produced at Annexure-C to the writ petition.
4. Land bearing Sy.Nos.79/1 and 93 belonging to other owners which are also excluded from acquisition are situated abutting the land in question. This is evident from the sketch which is part of the record produced at Annexure-D and which is also part of the original records made available. Sy.Nos.79/1 & 93 are situated to the North of Sy.No.94/1.
5. As already referred to above, those two survey numbers have been excluded from acquisition as per resolution dated 04.04.1997. It is also necessary to notice that although award was passed and 16(2) notification was issued even in respect of those two survey numbers, the same were excluded from acquisition, but insofar as land in question bearing Sy.No.94/1 measuring 21 guntas which is situated immediately abutting the two lands which have been excluded from acquisition, no decision was taken. This made the petitioners approach the BDA with a request to consider their case on par with the case of adjoining land owners who had got the benefit of the decision of BDA. Copy of the representation submitted on 21.10.2010 is produced at Annexure-H.
6. Based on the representation, proceedings were started before the BDA. The Land Acquisition Officer, as also the Legal Department attached to the BDA recommended to give back the land in question to the petitioners as had been done in the case of Sy.Nos.79/1 & 93. This is evident from the resolution dated 07.09.2013 produced at Annexure-J. However, by the impugned decision taken on 05.07.2014, the BDA has rejected the request of the petitioners on the ground that award had already been passed on 08.01.1996 and possession of land had been taken.
7. Learned counsel for petitioners strongly contends that action of the BDA is arbitrary and discriminatory, inasmuch as the entire note sheet culminating in the recommendation made by the authorities of the BDA disclosed that petitioners deserved similar treatment as that of the adjoining land owners, inasmuch as lands owned by them in Sy.No.94/1 measuring 21 guntas had to be excluded from acquisition as the same had not been utilised by the BDA for formation of outer ring road and that it was not suitable for utilization for any other purpose.
8. Materials on record as is evident from Annexure-J disclose that the land in question has not been utilised for the purpose of formation of outer ring road. There was no decision taken to form any approved scheme for the purpose of utilization of this land and that the land in question was similarly situated as that of adjoining lands Sy.Nos.79/1 and 93 which had been excluded from acquisition and therefore, there was no legal impediment for excluding the land in question from acquisition. It cannot be denied that persons similarly situated cannot be discriminated in the matter of extending certain beneficial treatment particularly when an instrumentality of the State exercises its power. This is a case where except petitioners, other land owners whose lands though acquired, but not utilised, have been excluded from acquisition. Only reason assigned in the impugned resolution for declining the request of the petitioners is that award had been already passed and possession of land had been taken by issuing 16(2) notification.
9. As already pointed out by the counsel for petitioners even in respect of Sy.Nos.79/1 & 93 which are the adjoining lands, award had been passed and possession of the same had been allegedly taken over as is evident from the records made available by the BDA. If that is so, I do not understand how petitioners could be discriminated against when question regarding exclusion of their land from acquisition arises.
10. The fact that land in question has not been utilised is an admitted fact. The fact that there is no other approved scheme for utilizing the unutilized lands is also not in dispute. It is not the case of the BDA that petitioners have been paid compensation or that they have received the compensation determined. Mere deposit of compensation without tendering the same and without notifying the petitioners to receive the compensation would not complete the acquisition proceedings. It is for this reason the adjoining lands have been excluded from acquisition. If that is so, petitioners are also entitled for similar treatment.
11. Hence, without going into other contentions raised pertaining to Section 27 of BDA Act and Section 24(2) of the new Act, petitioners are entitled to succeed on a short point that they cannot be discriminated against in the matter of exclusion of land in question from acquisition as the same has not been utilised for the purpose for which it was acquired. Therefore, these writ petitions are allowed in part. Petitioners are entitled for exclusion of their land from acquisition as has been done in the case of lands Sy.Nos.79 & 93/1. The acquisition proceedings in question shall not affect the land in question.
Sd/- JUDGE PKS