IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.Nos.42172-173/2017 (LA-BDA) BETWEEN 1. MR.M.NARASIMHA MURHTY, S/O LATE M.MUNIYAPPA, AGED ABOUT 52 YEARS 2. MR M.JANARDHANA, S/O LATE M.MUNIYAPPA, AGED ABOUT 46 YEARS BOTH R/AT NO. 14, 18TH CROSS, 1ST D MAIN, MTS LAYOUT, KENGERI SATELLITE TOWN, BANGALORE 560 060. ... PETITIONERS (By Sri P.S.RAJAGOPAL, SR.COUNSEL FOR Sri IRISHAD AHMED B.M.,, ADV.) AND 1. THE BANGALORE DEVELOPMENT AUTHORITY, CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALROE 560003 2. THE STATE OF KARNATAKA, REP BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, VIKAS SOUDHA, BANGALORE 560 001. ... RESPONDENTS (By Sri VIJAYAKUMAR A.PATIL, AGA FOR R2) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE RESPONDENTS EITHER PAY THE COMPENSATION AMOUNT TOGETHER WITH SOLATIUM IN TERMS OF THE RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT, 2013 OR ALLOT THE PETITIONERS 100% ALTERNATIVE LAND IN A WELL DEVELOPED AREA TOGETHER WITH SOLATIUM FROM 2009 TILL DATE, IN LIEU OF THE PETITIONERS LAND I.E., 8 GUNTAS (8712 SQ.FT.) IN SY.NO.31/1A UNAUTHOISEDLY UTILISED BY THE RESPONDENTS.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Petitioners have approached this Court under Article 226 of the Constitution of India seeking a direction to the respondents to allot them alternate land in lieu of 8 guntas of land comprised in Sy. No.31/1A of Valagerahalli village acquired by the Bengaluru Development Authority (for short, ‘BDA’) for formation of Gnana Bharathi layout.
2. As can be seen from the petition averments and the various documents including the notifications which are enclosed to the writ petition, Preliminary Notification under Section 17(1) of the Bengaluru Development Authority Act, 1976, was issued on 19.01.1989 proposing to acquire the land bearing Sy. No.31/1A totally measuring 2 acres 12 guntas situated at Valagerahalli village for formation of Gnana Bharathi Layout. Ultimately, final notification was issued on 06.10.1997. Award has been passed for an extent of 2 acres of land comprised in Sy. No.31/1A on 20.02.1998. This has been approved by the Special Deputy Commissioner on 10.03.1998 for a sum of Rs.6,07,486/-. Indeed, these particulars are available from the records made available by the learned Counsel for the BDA. It is evident from the materials on record and also from the original records that the compensation amount determined in respect of the land acquired has not been either paid or deposited.
3. Petitioners in this writ petition are concerned with 8 guntas of land which has fallen to their share in the registered partition deed dated 22.08.1970 produced at Annexure-A. The RTC extract in respect of the land which has fallen to the share of the petitioner is produced at Annexure-A1. Thus, it emerges that BDA has taken almost nine years for completion of the acquisition proceedings. It has also utilized the land for formation of layout, but has not paid the compensation. In the circumstances, petitioners have approached this Court seeking the aforementioned relief to pay compensation together with all benefits payable under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, or in the alternative, to allot land of equal extent in a well developed area.
4. I have heard the learned Senior Counsel Mr.
P.S.Rajgopal for the petitioners and the learned Counsel for the BDA Mr. Narendra Gowda and the learned Additional Government Advocate.
5. As rightly contended by the learned Senior Counsel by referring to various judgments of this Court rendered in similar circumstances, petitioners cannot be deprived of their valuable immovable property by the BDA without paying compensation. This is a case where valuable land belonging to the petitioners has been taken away for formation of layout as back as in the year 2002. So far, petitioners have not been paid any compensation. The acquisition proceedings have been initiated in the year 1989. BDA cannot be heard to say that petitioners will be entitled to compensation based on the market value as it obtained in the year 1989.
6. In similar circumstances, in the order dated 17.8.2017 passed in W.P.No.9302/2016, after referring to several judgments of the Apex Court including the judgment in VIJAY LATKA & ANOTHER Vs. STATE OF HARYANA & OTHERS – (2016) 12 SCC 487 and by extracting the observations of the Apex Court in paragraphs 5 & 6 therein, and also by referring to the judgment in the case of TUKARAM KANA JOSHI & OTHERS Vs. M.I.D.C. & OTHERS – (2013) 1 SCC 353 and by referring to observations made in paragraphs 8 & 9 therein by the Apex Court, this Court has held in paragraphs 15 to 19. The same is usefully extracted hereunder:
“15. As already pointed out above, BDA has acquired the land, taken possession of the same, and has allotted it to third parties receiving the consideration thereof. But, as far as the land looser is concerned, it has not bothered to pay the compensation. It has kept the amount unto itself. This action can only be characterized as highly illegal, unjust and hence, deprecable.
16. In the case of TUKARAM KANA JOSHI & OTHERS VS M.I.D.C. & OTHERS – (2013) 1 SCC 353, in paragraphs 8 & 9, the Apex Court has observed as under:
“8. In the case at hand, there has been no acquisition. The question that emerges for consideration is whether, in a democratic body polity, which is supposedly governed by the Rule of Law, the State should be allowed to deprive a citizen of his property, without adhering to the law. The matter would have been different had the State pleaded that it has right, title and interest over the said land. It however, concedes to the right, title and interest of the appellants over such land and pleads the doctrine of delay and laches as grounds for the dismissal of the petition/appeal.
9. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. There is a distinction, a true and concrete distinction, between the principle of "eminent domain" and "police power" of the State. Under certain circumstances, the police power of the State may be used temporarily, to take possession of property but the present case clearly shows that neither of the said powers have been exercised. A question then arises with respect to the authority or power under which the State entered upon the land. It is evident that the act of the State amounts to encroachment, in exercise of "absolute power" which in common parlance is also called abuse of power or use of muscle power. To further clarify this position, it must be noted that the authorities have treated the land owner as a 'subject' of medieval India, but not as a 'citizen' under our constitution.”
17. Though these observations are made by the Apex Court in the context of a case where the State had deprived the citizen of his valuable land without acquiring the same and without paying compensation to him, the said observations regarding right of the land looser and the obligations of the acquiring body to follow the due procedure which not only involves acquisition of land in accordance with law, but also payment of compensation as per the procedure prescribed before taking over possession are very much applicable to the instant case. If land is acquired by issuing notifications and award is passed but compensation is not paid, the harm and injury that results to the land looser is not different as compared to the utilization of land without acquisition. The latter, no doubt, is a graver form of arbitrary exercise of power completely violating the constitutional mandate under Article 300A and the other statutory provisions of the Land Acquisition Act. But merely because notifications acquiring the land had been issued, and indeed award had passed determining the compensation payable for the acquired land, action of the statutory authority cannot pass the litmus test of being just, fair and reasonable as mandated in Article 300A and as required under the statutory provisions of the Land Acquisition Act, unless compensation is paid/tendered/deposited by following due process before possession was taken.
Failure to comply with this mandatory requirement, may entail very serious consequences on the acquiring body and may even in certain cases affect the very basis of acquisition. The BDA cannot get away with such arbitrary, illegal and unjust act by saying that it will pay compensation along with interest reckoning the date of Preliminary Notification for quantifying the compensation.
18. The facts of the case clearly disclose that father of the petitioners had asserted his rights. He had even requested the BDA to consider his case for grant of permission to develop the land with an option to deliver 30% of the developed land to the BDA for allotment to the needy. Indeed, this Court having examined this request had issued a direction to the BDA to consider the request. Nothing is forthcoming from the records nor anything is stated in the statement of objections as to what happened to this direction issued by this Court. On the other hand, BDA has issued award notice under Section 12(2) of the Land Acquisition Act on 02.09.2000. But, without even tendering compensation, has taken possession on 04.09.2000 as is clear from the records. It is thus clear that inspite of court direction to consider the request of petitioners under the scheme providing 70:30 sharing of developed land, in utter violation of the direction, the BDA has dispossessed the petitioners. The BDA has gone ahead with the acquisition and has taken possession of the land highhandedly without paying compensation or depositing the same. Therefore, this is a clear case of highly arbitrary action. Petitioners have been deprived of the valuable piece of land which was their source of livelihood, without any compensation. 17 years have since passed. It will be highly unjust to tell the petitioners that they should take the compensation amount determined by the Land Acquisition Officer along with interest and rest satisfied. They are entitled for payment of compensation based on the current market value along with damages.
19. Hence, this writ petition is allowed. It is hereby ordered that BDA shall treat the land as having been acquired today and pay the compensation determining the market value based on the present market value as it obtains today as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The market value shall be determined by passing an order within a period of 15 days from today and the same shall be paid within a period of 15 days thereafter to the petitioners. It is also open to the BDA to grant equal extent of land of similar value having similar potentiality as an alternative. The said order to be passed by the BDA shall be construed as an award for all practical and legal purposes. It is held that BDA is also liable to pay damages for the illegal use and occupation of the land in question with effect from the year 2000 which has to be assessed while passing the order. Liberty is reserved to the petitioners to approach the competent authority seeking reference of their dispute for further relief.”
7. Having regard to the facts and circumstances of the present case and as admittedly no compensation has been paid to the petitioner and as they have been deprived of their valuable possession of the land for all these years, petitioner is entitled for similar relief.
8. Hence, these writ petitions are allowed. BDA is directed to grant equal extent of land measuring 8 guntas of similar value having similar potentiality in the nearby locality, or in the alternative, to pay compensation treating the land as having been acquired today in terms of the provisions contained under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
Sd/- JUDGE KK