IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT W.P.No.18111/2016 & W.P.No.20528/2016 (LA-BDA) BETWEEN:
Smt.Sharadamma W/o. Late. Kempanna Aged about 67 years No.494/32, 12th Main, 3rd Block, Rajajinagar, Bengaluru-560 010.
(By Sri.M.B.Naragund, Senior counsel a/w Sri.H.T.Vasanth Kumar, Advocate) AND:
1. The Bengaluru Development Authority, T.Chowdaiah Road, Bengaluru-560 020.
Represented by its Commissioner 2. The Special Land Acquisition Officer, Bengaluru Development Authority, T.Chowdaiah Road, Bengaluru-560 020.
(By Smt.A.D.Vijaya, Advocate) ... Petitioner ... Respondents These writ petitions are filed under Articles 226 and 227 of the Constitution of India, praying to direct the respondent authority to consider the petitioner representation dated 24.07.2015 at Annexure-K and to quash the impugned endorsement at Annexure-L dated 21.09.2015 issued by respondent authority.
These petitions coming on for Preliminary hearing this day, the Court made the following:
ORDER The short grievance of the petitioner is against the undue consideration by the respondent-BDA, of her representation dated 24.07.2015 at Annexure – K which has been reproduced verbatim, hereunder:
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2. In the above representation, the petitioner has stated that, the subject site which her late husband had bought by a registered sale deed dated 20.03.1974, was not included in the acquisition in question and therefore, the respondent-BDA should grant NOC, presumably for developing the said site or for otherwise alienation thereof.
3. The said representation having been cursorily considered came to be rejected by the respondents herein vide impugned endorsement dated 21.09.2015 at Annexure–L whereupon the petitioner has knocked at the doors of this Court seeking its quashment and for consideration of her claim for NOC.
4. After service of notice, the 1st respondent-BDA and the 2nd respondent-SLAO having entered appearance through their learned Senior Panel Counsel Smt.A.D.Vijaya, have filed the Statement of Objections on 18.08.2016 resisting the writ petitions.
5. The matter was heard for some time; Sri.M.B.Nargund the learned Senior Advocate for the petitioner submits that the issue as to whether petitioner’s site in question was the subject matter of acquisition or not, can be effectively addressed only after a joint survey of land in acquisition so that the said site is identified first and this exercise having not being done unjustifiably, there is error apparent on the face of the record warranting indulgence of this Court for setting the same at naught and thereby facilitating the reconsideration of petitioner’s representation after doing the survey.
5. Per contra, Smt. A.D.Vijaya, the learned Senior Panel Counsel for the respondent-BDA and its SLAO submits that there is no need to undertake the survey for consideration of petitioner’s representation and that since all the buildings have come up now on the entire land in acquisition, since which decades have rolled and that there is a real difficulty in conducting the survey at all and therefore the impugned endorsement cannot be faltered.
6. I have heard the learned Senior counsel for the petitioner and the learned Senior Panel Counsel for the respondents. I have perused the case papers. Apparently the matter lies in a narrow compass and the paper of the petitioner being innocuous cannot be denied in the facts and circumstances of the case.
7. The petitioner’s version that her husband had bought the petition site by a registered sale deed dated 20.03.1974 is prima facie established by the certified copy of the Sale Deed at Annexure-E to the petition. The acquisition in question of certain lands decades ago i.e., in March 1975 is established by the acquisition notification at Annexure-G; Section 16(2) notification under L.A. Act, 1894 since repealed, whereby possession of several pieces of lands was taken is a part of said acquisition notification. Going by the contents of the sale deed and that of the acquisition notification, it is rather difficult to form an opinion as to whether petition site was included therein.
8. The question whether the petition site was the subject matter of acquisition by the aforesaid notification cannot be conclusively answered in the absence of identification and location of the said site. This task of identification/location which is essential for due consideration of petitioner’s representation can be accomplished by undertaking survey of the locality/vicinity in a time bound manner. Participation of the petitioner or her agent would infuse confidence and fairness in the regularity of the said exercise. Since grievance is against the respondent-BDA and its officials, justice of the case requires that a Joint Survey with the involvement of some trained official not below the rank of Assistant Director of Land Records, Government of Karnataka is desirable. This team would decide whether it should be a ground survey or an aerial survey or both as the case may be.
9. In the above circumstances, these writ petitions succeed in part; a Writ of Certiorari issues quashing the impugned endorsement dated 21.09.2015; a Writ of Mandamus issues to the respondents to undertake the Joint Survey as mentioned above with the participation of the petitioner’s site, and thereafter to consider petitioner’s representation as aforementioned, again with her participation, in accordance with law.
Time for compliance is four months. Costs made easy.
Sd/- JUDGE UN