IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.No.10552/2015 & W.P.No.18493/2015 (LA-BDA) BETWEEN M/s S.A.ENTERPRISES, HAVING ITS OFFICE AT NO.118/6, 16TH CROSS, 1ST BLOCK, RAJAJINAGAR, BANGALORE-560010, REP BY ITS MANAGING PARTNER- SRI K.V.SATYA PRAKASH, AGED ABOUT 44 YEARS, S/O.SRI.K.V.MOODALAIAH. ... PETITIONER (By Sri JAYAKUMAR S.PATIL, SR.COUNSEL FOR Sri H.V.SUBRAMANYA, ADV.) AND 1. THE STATE OF KARNATAKA, URBAN DEVELOPMENT DEPARTMENT, M.S.BUILDING, DR.AMBEDKAR VEEDHI, BANGALORE-560001, BY ITS SECRETARY.
2. THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY, T.CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE-560020.
3. THE ADDITIONAL LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY, T.CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE-560020. ... RESPONDENTS (By Sri VIJAYAKUMAR A.PATIL, AGA FOR R1; Sri K.N.PUTTEGOWDA, ADV. FOR R2 & R3) 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 SCHEDULE PROPERTY AS PER PRELIMINARY NOTIFICATION DTD.27.6.1978 VIDE ANNEX-T & FINAL NOTIFICATION DTD.9.1.1985 VIDE ANNEX-U HAVE LAPSED AND ETC.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING – B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. One Smt.Narayanamma wife of Sri Narayanappa was the owner of land measuring 1 acre 21 guntas comprised in Sy.No.56/3 situated at Hennur Village, Kasaba Hobli, Bengaluru North Taluk. She and her son formed a layout consisting of various sites. Whereupon, she was recognized as khatedar of plot Nos.1 & 2 each measuring 60 ft X 150 ft. Narayanamma sold the said plots to petitioner vide Sale Deed dated 28.02.2013. Khata of the plots which was earlier standing in the name of Narayanamma has been transferred to the petitioner. When the officials of the 2nd respondent – BDA attempted to disturb the possession of the property and the structure existing thereon, petitioner resisted the same. On enquiry, petitioner claims to have learnt that the land in question at one point of time had been notified for formation of Hennur-Ballari Road Layout as per preliminary notification dated 27.06.1978 issued under Section 17(1) of the Bangalore Development Authority Act (for short, ‘the BDA Act’), followed by final notification dated 09.01.1985 issued under Section 19(1) of the BDA Act.
2. It is asserted that on enquiry made by the petitioner, it revealed that though award had been passed on 09.06.1987, authorities did not complete the acquisition proceedings by taking over possession and paying compensation to the erstwhile landowners.
3. It is the case of petitioner that as the land was in possession of its vendor and was developed by putting up shed on it, the same was purchased under a bonafide belief that it was free from any acquisition, particularly because the name of the vendor was found in the khatha of the land. Being under the threat of dispossession and apprehending that BDA may take over possession of the land, petitioner has approached this Court seeking a declaration that acquisition proceedings in respect of land in question had been abandoned and consequently stood lapsed.
4. Respondent – BDA has filed statement of objections.
It has contended that petitioner has approached this Court belatedly and therefore, writ petition was liable to be dismissed for delay and latches. He has also contended that petitioner being the purchaser from the previous owner after the land was notified for acquisition, writ petition could not be maintainable. It is further stated that possession of entire land 1 acre 21 guntas comprised in Sy.No.56/3 was taken on 19.06.1987 pursuant to the award passed on 09.06.1987. In this regard, reliance is placed on the mahazar dated 19.06.1987 produced at Annexure-R and the notification issued under Section 16(2) of the Land Acquisition Act dated 30.01.1992.
5. Sri Jayakumar S.Patil, learned Senior Counsel appearing for petitioner submits that the acquisition proceedings have been abandoned by the BDA as it has neither taken possession of the land, nor deposited the compensation as contemplated under the provisions of the Land Acquisition Act. He invites the attention of the Court to the order dated 18.04.2016 passed in W.P.No.2905/2016 pertaining to 30 guntas of land comprised in very same Sy.No.56/3 of Hennur Village which totally measured 1 acre 21 guntas wherein acquisition has been held as abandoned.
6. A perusal of the order dated 18.04.2016 in W.P.No.2905/2016 makes it very clear that facts involved in this case are absolutely similar to the facts of the said case. A common award was passed determining the compensation in respect of both the portions of land comprised in Sy.No.56/3. Mahazar produced in this case is the very same mahazar which pertained to the entire extent of 1 acre 21 guntas of land comprised in Sy.No.56/3 that was produced in W.P.No.2905/2016 and even in the said case also the stand of the BDA was that possession had been taken under the said mahazar and compensation had been deposited in the revenue deposit of the BDA. By considering this stand and after examining the contents of the very mahazar on which reliance has been now placed, this Court in paragraph 4 of the said order has held as under:
“4………..Even insofar as the claim of having taken physical possession, is concerned, even though reliance is sought to be placed on Annexure R-4, it can hardly be accepted as it is plain that the said document is not readily acceptable. This is the view taken in a large number of petitions before this court, where such document which is said to be mahazar is a standard format, with blanks casually filled in and the signatures of certain unknown persons having been obtained as witnesses to the taking of physical possession. The said document is signed by unknown persons. Therefore, the parentage or address or age is not revealed and only their signatures forthcoming could hardly be accepted. As already observed by this court, an authentic document would be necessary to establish that factum. The BDA ought to take the matter to its logical conclusion, in that, if the BDA were to be called upon to prove the document, it would in turn require the BDA to examine persons. It would well neigh be impossible for this court to accept that the physical possession had indeed been taken. It is not the case of the BDA that the land having been allotted has been taken possession of by third parties and that they have put up construction thereof. Though there is bald claim of having allotted the land to third-parties, no further particulars are provided to indicate that they have taken possession and put up construction and therefore the case of the BDA cannot be accepted. The physical possession having been taken remaining in doubt and the admitted circumstance that the compensation amount has been kept in a revenue deposit would not amount to payment in the eye of law and consequently, not only the scheme would lapse insofar as the petitioner’s land is concerned, the acquisition itself would lapse and it is so declared.
The petition is accordingly allowed. The acquisition proceedings in respect of the petitioner’s land stand quashed.”
7. On the process of above reasoning, this Court has already held in respect of the very mahazar that it had no legal sanctity and could not evidence the factum of taking over possession. In the circumstances, petitioner is right and justified in contending that the BDA cannot be permitted to place reliance on the same mahazar to now contend that possession had been taken over.
8. The fact that entries in the khata of the land continued to be in the name of vendor of the petitioner even after issuing final notification and passing award and that subsequently after the registered Sale Deed, the entries were continued in the name of the petitioner further probablises that possession of the land had not been taken at any point of time. If the acquisition proceedings had been acted upon and the land had been made use of for the purpose it was notified, then certainly name of the BDA and subsequently the allottees, if any, would have been entered in the khata. Therefore, contentions urged by the BDA that possession of land had been taken cannot be accepted.
9. If the acquisition proceedings is not complete by taking over possession and paying compensation, then as held in catena of decisions, the proceedings stand lapsed as having been abandoned. The BDA has not furnished any details regarding formation of layout or utilizing the land for the purpose of allotment to the others. This factor also clearly shows that the assertion made by the BDA that the land had been utilized by taking over possession is baseless.
10. The contention that subsequent purchaser cannot maintain the writ petition is not sustainable in law in view of the order dated 05.02.2016 passed in W.P.Nos.10286- 291/2014 in the case of SURYAPRAKASH Vs. STATE OF KARNATAKA wherein it is held in paragraph 16 as under:
“16. In the light of the above, the principle that transferee of land after the publication of preliminary notification cannot maintain a writ petition challenging the acquisition, cannot be made applicable to a case where the acquisition itself has been abandoned and has stood lapsed due to efflux of time on account of the omission and inaction on the part of the acquiring authority, particularly because, it is because of the lapse of time and the abandonment of acquisition, right accrues to the original owner to deal with his property including by way of sale and the purchaser will acquire right to protect his interest. Hence, the judgment in the case of RAJASTHAN STATE INDUSTRIAL DEVELOPMENT AND INVESTMENT CORPORATION VS. SUBHASH SINDHI CO-OPERATIVE HOUSING SOCIETY, JAIPUR AND OTHERS – (2013) 5 SCC 427, will have no application to the facts of the present case.”
The Apex Court has approved this position of law in the case of GOVT. OF NCT OF DELHI Vs. MANAV DHARAM TRUST & ANOTHER- AIR 2017 SCW 2450. In such circumstances, where the relief sought is regarding lapse of acquisition, it cannot be said that writ petition could not be maintained by the subsequent purchaser.
11. It is also necessary to notice here that order passed by this Court in W.P.No.2905/2016 on 18.04.2016 in respect of the other portion of the same land has been affirmed in W.A.No.4857/2016 vide judgment dated 10.04.2017. In this view of the matter, following the order of the Single Judge and the judgment of the Division Bench affirming the same, these writ petitions are also allowed. It is declared that acquisition proceedings with regard to subject land have stood lapsed as having been abandoned.
Sd/- JUDGE PKS