IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 20TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S.G.PANDIT WRIT APPEAL Nos.43-44 OF 2011 (LA-BDA) c/w WRIT APPEAL No.4840 OF 2010 (LA-BDA) AND W.A.No.5578 OF 2011 (LA-BDA) In W.A. Nos.43-44 of 2011:
BETWEEN:
1. SMT SAVITHRAMMA AGED ABOUT 73 YEARS W/O LATE S.RANGAIAH RESIDING AT NO.137, 1ST FLOOR, 1ST CROSS, RAYAPPA ROAD, KAMMANAHALLI, BENGALURU – 560 084.
2. SRI R.SUBBARAJU SINCE DECEASED BY LRs:
A) SMT.LAKSHMI W/O LATE R.SUBBARAJU AGED ABOUT 51 YEARS B) SRI PRADEEP.S., S/O LATE R.SUBBARAJU AGED ABOUT 32 YEARS C) SMT.PREETHI S.K. D/O LATE R.SUBBRAJU AGED ABOUT 31 YEARS D) SRI SREEDHAR.S., S/O LATE R.SUBBARAJU AGED ABOUT 27 YEARS ALL ARE RESIDING AT NO.156, GROUND FLOOR WHEELER ROAD, FRAZER TOWN BENGALURU-560 005. ...APPELLANTS (By Sri G.PAPI REDDY, ADVOCATE FOR A1;
Sri P.S.JAGADISH, ADVOCATE FOR A2(A TO D) AND:
1. STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT, MULTI STORIED BUILDING, DR.AMBEDKAR VEEDHI, BENGALURU – 560 001.
2. THE COMMISSIONER BENGALURU DEVELOPMENT AUTHORITY, T.CHOWDAIAH ROAD, K.P.WEST BENGALURU-20 3. THE ADDITIONAL LAND ACQUISITION OFFICER BENGALURU DEVELOPMENT AUTHORITY, T.CHOWDAIAH ROAD, K.P.WEST BENGALURU-20 4. SRI S.VENKATESHALU SINCE DECEASED BY Lrs:
A) MRS.V.SHARADA W/O LATE S.VENKATESHALU AGED ABOUT 68 YEARS.
B) MR.V.RAGHU S/O LATE S.VENKATESHALU AGED ABOUT 40 YEARS.
C) MRS. MANJULA D/O LATE S.VENKATESHALU AGED ABOUT 38 YEARS.
D) MR.V.HARISH S/O LATE S.VENKATESHALU AGED ABOUT 35 YEARS.
E) MRS.V.CHANDRAKALA JYOTHI D/O LATE S.VENKATESHALU AGED ABOUT 32 YEARS.
F) MISS. CHANDANA D/O LATE S.VENKATESHALU AGED ABOUT 10 YEARS.
G) MISS VARSHA D/O LATE S.VENKATESHALU AGED ABOUT 8 YEARS.
R4(F) AND (G) ARE MINORS REPRESENTED BY FATHER AND NATURE GUARDIAN MR.S.DIWAKAR, S/O LATE MANI.
ALL ARE RESIDING AT NO.6-49 SHASTRI STEET VENKATESHPURAM BENGALURU-560 045. ...RESPONDENTS (By Sri S.S.MAHENDRA, AGA FOR R1;
Sri GOUTHAMDEV C.ULLAL, ADVOCATE FOR R2 & R3; Sri VIGNESH RAJ, ADVOCATE FOR Sri ARUNKUMAR, ADVOCATE FOR Lrs OF R4) THESE WRIT APPEALS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.10824-10825/2009(LA- BDA) DATED 11/11/2010.
* * * In W.A.No.4840 OF 2010 & W.A.No.5578 of 2011:
BETWEEN:
SRI VENKATESALU S/O LATE SUBBAIAH AGED 72 YEARS VENAKTESHAPURA ARABIC COLLEGE PO BENGALURU 560 045 BY HIS LEGAL HEIRS:
1(a) MRS.V.SHARADHA W/O LATE S.VENKATESALU AGED ABOUT 67 YEARS.
1(b) MR.V.RAGHU S/O LATE S.VENKATESALU AGED ABOUT 40 YEARS.
1(c) MRS.V.MANJULA D/O LATE S.VENKATESALU AGED ABOUT 38 YEARS.
1(d) MR.V.HARISH, S/O LATE S.VENKATESALU AGED ABOUT 38 YEARS.
1(e) MRS.V.CHANDRAKALA JYOTHI D/O LATE S.VENKATESALU AGED ABOUT 32 YEARS.
1(f) CHANDANA.D.
D/O LATE MAMATHA AND DIVAKAR.S.
AGED ABOUT 10 YEARS, REPRESENTED BY HER FATHER AND NATURAL GUARDIAN, MR.DIVAKAR.S.
1(g) MISS.VARSHA.D.
D/O LATE MAMATHA AND DIVAKAR.S. AGED ABOUT 07 YEARS, REPRESENTED BY HER FATHER AND NATURAL GUARDIAN, MR.DIVAKAR.S.
ALL ARE RESIDING AT NO.6/14, SHASTRI STREET, VENKATESHAPURA, BENGALURU – 560 045. ...APPELLANTS (By Sri VIGNESH RAJ, ADVOCATE FOR Sri K.ARUNKUMAR, ADVOCATE) AND:
1. STATE OF KARNATAKA BY SECRETARY URBAN DEVELOPMENT AUTHORITY M.S.BUIDLING, BENGALURU - 560 001.
2. THE COMMISSIONER BENGALURU DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD K.P.WEST BENGALURU - 560 020 3. THE ADDITIONAL LAND ACQUISITON OFFICER, BENGALURU DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD, K.P.WEST, BENGALURU – 560020.
4. SMT.SAVITHRAMMA W/O S.RANGAIAH AGED ABOUT 74 YEARS 5. SRI R.SUBBARAJU S/O RANGAIAH AGED ABOUT 54 YEARS RESPONDENTS No.4 & 5 ARE RESIDING AT VENKATESHAPURA, ARABIC COLLEGE POST, BENGALURU - 560 045.
REPRESENTED BY GPA HOLDER, Mr.K.M.ABDUL HAKIM. ...RESPONDENTS (By Sri S.S.MAHENDRA, AGA FOR R1;
Sri GOUTHAMDEV C.ULLAL, ADVOCATE FOR R2 & R3; Sri G.PAPI REDDY, ADVOCATE FOR R4 & R5) THESE WRIT APPEALS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION Nos.10824-10825/2009(LA- BDA) DATED 11/11/2010.
THE ABOVE WRIT APPEALS COMING ON FOR HEARING, THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order passed by the learned single Judge in dismissing the petition on delay, the petitioners have filed these appeals.
2. There are no submissions forthcoming from the appellants counsel.
3. We have examined the material available on record.
4. The appellants filed the instant writ petition seeking to set aside the Preliminary Notification dated 29.05.1978 and Final Notification dated 28.02.1985 with respect of their lands in Sy.No.136, measuring 5 acres 10 guntas and Sy.No.138/4 measuring 1 acre 22 guntas situated at Kadugondanahalli Village, Kasaba Hobli, Bengaluru North Taluk in so far as it relates to the writ petitioners only, on the ground that the entire acquisition has lapsed and/ or abandoned on account of non-utilization of the lands by the Respondent-Bengaluru Development Authority (B.D.A.) for more than three decades.
5. The plea of the petitioner is that even though the land was acquired by the Respondent/B.D.A., the lands of the petitioners have not been used for any purpose at all. That in terms of the Resolution of the B.D.A. dated 30.07.1988, it was resolved to give up the subject lands belonging to the petitioners from the scope of acquisition, in view of the fact that though awards had been passed in respect of these lands, physical possession had not yet been taken by the B.D.A. It is their further case that there was de-notification in respect of the land measuring 5 acres 16 guntas in Sy.No.136 and 1 acre 22 guntas in Sy.No.138/4. That the permission was also sought for by the second petitioner to develop the lands under “Group Housing Scheme”. That the Government issued an order dated 17.11.1995 according approval to the proposal of the B.D.A. and also indicating that depending upon the nature of the project to be taken up by the petitioners, certain percentage of the land area should be earmarked for development activity in favour of the low income group persons, etc., The same was challenged in a Public Interest Litigation wherein the Government Order was quashed, even though the petitioners continued to remain in possession. Thereafter, the instant writ petitions were filed on the ground that the Scheme has lapsed.
6. The Respondent-B.D.A. was served and was represented by its counsel. No statement of objections were filed on behalf of Respondent-B.D.A. Infact, the learned single Judge took note of the irresponsible conduct of the Respondent-B.D.A. before the Court. On merits, the learned single Judge was of the view that there was a substantial delay in filing the writ petitions. That the writ petitions have been filed on the touch stone of Section 27 of the B.D.A. Act with regard to the lapsing of the Scheme. That the Final Notification was issued under Section 19(1) of the B.D.A. Act which means the cause of action arose in the year 1990. However, the writ petitions were filed in the year 2009 after 19 years. That the so-called assurance and promises meted out by the Respondent-State and B.D.A. cannot be a ground to condone the delay. Keeping in mind, the atrocious manner in which B.D.A. has conducted itself before the learned single Judge, a cost of Rs.25,000/- was awarded against the B.D.A. Questioning the said order, the instant appeal is filed.
7. Learned counsel for the respondent B.D.A. has made two submissions. The first submission is that there is a delay of 19 years in filing the writ petitions and therefore, the learned single Judge was justified in rejecting the petitions on the ground of delay and latches. The second ground is that the possession was taken by B.D.A. on 07.08.2008. Since there are no submission by the appellants counsel, we have examined the material as well as the records.
8. The B.D.A. has filed its statement of objections on 05.11.2012. We have considered the same. Various dates along with events have been narrated in the statement of objections, namely, award amount came to be deposited in the Civil Court on 16.02.2009, Notification under Section 16(2) of the L.A. Act came to be issued on 24.04.2009, etc., On a question being asked, the B.D.A. admits that there is no objections filed by him that the Scheme has not lapsed. It is only with reference to Para No.5 of the statement of objections, where it is stated that the writ petition is hit by delay and latches and the same is liable to be dismissed on this ground alone. The petitioners cannot seek a relief of lapsing of the Scheme on the grounds alleged in the writ petition or otherwise. It is further stated in Para No.8 that the Preliminary Notification dated 29.05.1978 came to be issued for a total extent of 1,137 acres and 14 guntas comprising in Syamapura, Devarajeevanahalli, Kadugondanahalli, Kaval Byrasandra and Nagavara. In Para No.9, it is stated that the Final Notification dated 28.02.1985 came to be issued by the State Government for a total extent of 1,228 acres 39 guntas comprising in Syamapura, Devarajeevanahalli, Kadugondanahalli, Kaval Byrasandra and Nagavara. That out of the lands acquired, 216 acres 16 guntas have been de-notified by the State Government That the B.D.A. has taken possession of 298 acres and 1 gunta and has formed the Layout in 291 acres and 38 guntas. Out of 1,228 acres 39 guntas, 216 acres 16 guntas have been de-notified. Therefore, what remains is 1,012 acres 23 guntas. Out of that, B.D.A. has taken possession of only 298 acres, which means it has not taken possession of 930 acres and it has formed layout in 291 acres.
9. We do not find any reference to the fact whether the lands of the petitioner has been developed by the B.D.A. even though they narrate that the possession of the petitioners land has been taken. Learned counsel for the B.D.A. submits that the Scheme has been substantially implemented. It is unbelievable. Out of 1,228 acres, B.D.A. has taken possession of only 298 acres 1 gunta and 216 acres 16 guntas have been de-notified, which means that the B.D.A. has not taken possession of about 800 acres. Even though in their statement of objections, it is stated that B.D.A. has formed layout in 291 acres and 38 guntas out of the lands acquired, there is no material to indicate as to how many sites have been formed and who are the allottees. Therefore, we fail to understand as to how the B.D.A. can make a submission that there is substantial compliance of the Scheme.
10. Even otherwise, we are of the view that the finding of the learned single Judge that the writ petition is hit by delay and latches is inappropriate. The lapsing of the Scheme as pleaded by the writ petitioners is with reference to Section 27 of the B.D.A. Act. The same would indicate that, 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, if the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative.
11. The learned single Judge holds a mathematical calculation for the same in Para No.27 of the order. The conclusion arrived at is that the Final Notification is issued in the year 1985. Five years lapsed in the year 1990 and the writ petitions were filed in the year 2009. Therefore, there is a delay of 19 years and therefore, declines to exercise jurisdiction. We are unable to accept such a reasoning. The entire petition is based on delay. The plea of the petitioners is that there has been a substantial delay in implementing the scheme of B.D.A. Therefore, it is not a case of any delay being caused by the writ petitioners but that the entire cause to file the writ petitions is the delay by the B.D.A. itself. If the reasoning of the learned single Judge is to be accepted, then the writ petitions have been filed exactly on the completion of five years from the date of the Final Notification. That in our considered view, is not an appropriate conclusion. When the plea of the petitioners that the Scheme has lapsed due to non- implementation, that delay would come to the aid of the petitioners and not to the respondents. Therefore, the rejection of the writ petitions on the ground of delay and laches is inappropriate. In the facts and circumstances of the case and in our considered view, we have no hesitation to hold that the order of the learned single Judge is unsustainable and is liable to be set aside.
Hence, we pass the following:
ORDER i) The writ appeals are allowed.
ii) The order dated 11.11.2010 passed in W.P.Nos. 10824-10825 of 2009 (LA-BDA) by the learned single Judge is set aside. The writ petitions are restored to file.
iii) It is held that there is no delay in filing the writ petitions. Consequently, the writ petitions require to be considered on merits.
iv) The observations made by us on merits, are only for the purpose of considering these appeals. None of the consideration on merits shall come in the way of the learned Single Judge deciding the matter on merits.
v) The matter shall be re-considered by the learned single Judge, on merits and in accordance with law.
sd/- sd/-
JUDGE JUDGE DH