R 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 16TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO.1053 OF 2007 [LA-BDA] AND WRIT APPEAL NO.3732 OF 2011 [LA-BDA] CONNECTED WITH WRIT APPEAL NO.1125 OF 2007 [LA-BDA] AND WRIT APPEAL NOS.3729 TO 3731 OF 2011 [LA-BDA] IN WRIT APPEAL NO.1053 OF 2007 AND WRIT APPEAL NO.3732 OF 2011:
BETWEEN:
1. SRI. ANTHONY REDDY, SON OF THE LATE THOMASAPPA, AGED ABOUT 65 YEARS, RESIDING AT VEERANAPALYA VILLAGE, ARABIC COLLEGE POST, BENGALURU-560 045.
* SINCE DECEASED BY HIS LEGAL REPRESENTATIVES:
1(a). SMT. SUSHEELA AGED ABOUT 65 YEARS 1(b). A JACINTHA AGED ABOUT 49 YEARS 1(c). RAJ MARY A AGED ABOUT 46 YEARS 1(d). THOMAS KUMAR A AGED ABOUT 43 YEARS 1(e). JOSEPHINA A AGED ABOUT 40 YEARS 1(f). GEORGE A AGED ABOUT 38 YEARS 1(g). JAYA PRABHA AGED ABOUT 34 YEARS ALL ARE RESIDING AT NO.10, CHURCH MAIN ROAD, NIRMALA NAGAR (ERANNAPALYA) A.C.POST, BENGALURU-560 045.
(*AMENDED VIDE COURT ORDER DATED 29.05.2013) 2. SRI. JOSEPH THYAGARAJ, SON OF LATE THOMASAPPA, AGED ABOUT 55 YEARS, RESIDING AT VEERANAPALYA VILLAGE, ARABIC COLLEGE POST, BENGALURU-560 045. ... APPELLANTS [BY SRI. B.V.ACHARYA, SENIOR COUNSEL FOR SRI. JANARDHANA G., ADVOCATE] AND 1. THE STATE OF KARNATAKA, BY ITS SECRETARY TO DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, M.S. BUILDING, VIDHANA VEEDHI, DR. AMBEDKAR ROAD, BENGALURU-560 001.
2. THE COMMISSIONER, BENGALURU DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560 020.
3. THE ADDITIONAL LAND ACQUISITION OFFICER, BENGALURU DEVELOPMENT AUTHORITY, T.CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560 020.
... RESPONDENTS [BY SRI. E.S. INDIRESH, ADDITIONAL GOVERNMENT ADVOCATE FOR R-1 SRI. D.N.NANJUNDA REDDY, SENIOR COUNSEL FOR SRI. B.LETHIF, ADVOCATE FOR R-2 & R-3] THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT,1961, PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.17935 OF 2002 DATED 12.04.2007.
***** IN WRIT APPEAL NO.1125 OF 2007 AND WRIT APPEAL NOS.3729-3731 OF 2011:
BETWEEN:
1. SRI. AROGYA REDDY, SON OF LATE THOMASAPPA, AGED ABOUT 60 YEARS, RESIDING AT VEERANAPALYA VILLAGE, ARABIC COLLEGE POST, BENGALURU-560 045.
2. SRI. CHOURI REDDY, SON OF LATE THOMASAPPA, AGED ABOUT 54 YEARS, RESIDING AT VEERANAPALYA VILLAGE, ARABIC COLLEGE POST, BENGALURU-560 045.
3. SRI. CHINNASWAMY REDDY, SINCE DECEASED BY HIS LEGAL REPRESENTATIVES:
3(a). SRI. ALBERT DAVID, AGED ABOUT 35 YEARS, 3(b). SRI. PRAKASH PAUL, AGED ABOUT 34 YEARS, BOTH RESIDING AT VEERANAPALYA VILLAGE, ARABIC COLLEGE POST, BENGALURU-560 045.
... APPELLANTS [BY SRI. B.V. ACHARYA, SENIOR COUNSEL FOR SRI. JANARDHANA G., ADVOCATE] AND:
1. THE STATE OF KARNATAKA BY ITS SECRETARY TO DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT M.S. BUILDING, VIDHANA VEEDHI, DR. AMBEDKAR VEEDHI, BENGALURU-560 001.
2. THE COMMISSIONER, BENGALURU DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560 020.
3. THE ADDITIONAL LAND ACQUISITION OFFICER, BENGALURU DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560 020.
... RESPONDENTS [BY SRI. E.S. INDIRESH, ADDITIONAL GOVERNMENT ADVOCATE FOR R1;
SRI. D.N.NANJUNDA REDDY, SENIOR COUNSEL FOR SRI. B.LETHIF, ADVOCATE FOR R2 AND R3] THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN WRIT PETITION NO.17935 OF 2002 DATED 12.04.2007 IN SO FAR AS THE APPELLANTS ARE CONCERNED.
* * * * * THESE WRIT APPEALS COMING ON FOR FINAL HEARING, THIS DAY RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the Order dated 12.04.2007 passed by the learned Single Judge in Writ Petition No.17935 of 2002 [LA-BDA] in dismissing the writ petition, writ petitioners 1 and 4 have filed Writ Appeal Nos.1053 of 2007 and 3732 of 2011. During the pendency of the appeals, the 1st petitioner died and his legal representatives were brought on record. Writ petitioners 2, 5 and 3 have filed Writ Appeal Nos.1125 of 2007 and 3729 to 3731 of 2011.
2. A common writ petition was filed by all the writ petitioners. The learned Single Judge considered the writ petition along with the connected writ petitions and by the common Order dated 12.04.2007, dismissed all the writ petitions. Hence, these appeals.
3. The parties will be referred to as per their ranking before the learned Single Judge.
4.(a) The case of the petitioners is as follows:
They are the sons of late Shri. Thomasappa, who died in the year 1978. That the agricultural land bearing Survey No.57/1 measures to an extent of 3 acres 28 guntas including 4 guntas of kharab land and Survey No.57/2 measures 6 acres 39 guntas, including 7 guntas of kharab land. Both the lands are situated at Nagawara village, kasaba hobli, Bengaluru North Taluk. The properties are family properties of their late father. During his life-time, the properties were partitioned under the registered Partition Deed dated 24.05.1972. In terms thereby, the 1st petitioner received a share of 2 acres 4 guntas of land in Survey No.57/1, the 2nd petitioner received a share of 1 acre 8 guntas of land in Survey No.57/1 and 33 guntas of land in Survey No.57/2. The 3rd petitioner received a share of 2 acres 1 gunta of land in Survey No.57/2. The 4th petitioner received a share of 2 acres 1 gunta of land in Survey No.57/2 and the 5th petitioner received a share of 2 acres 1 gunta of land in Survey No.57/2 of Nagawara village.
(b) That the 2nd respondent Bangalore Development Authority [‘BDA’ for short] issued a Preliminary Notification dated 02.06.1978 under Section 17 of the Bangalore Development Authority Act, 1976 [‘BDA Act’ for short] proposing to acquire 982 acres and 6 guntas of land for a scheme known as ‘Hennur Road and Bellary Road’ [‘HBR’ for short] III stage layout. The said notification included the lands of the petitioners. Objections were filed to the said preliminary notification by the petitioners. Much thereafter, the 1st respondent State, issued a Final Notification under Section 19 of the BDA Act, dated 02.02.1989. The petitioners thereafter filed a suit in Original Suit No.1875 of 1989 before the City Civil Court at Bengaluru, seeking for a declaration and injunction against the State and the BDA. An interim order of injunction as prayed for was granted. Thereafter, the suit was dismissed on 22.11.1995. In view of the subsequent disturbance by the respondents, the petitioners once again filed a suit in Original Suit No.7128 of 1996 for bare injunction. The suit came to be dismissed as withdrawn in 2001. Thereafter, in the light of the tender notification dated 20.03.2002 to form a layout only in Survey Nos. 54 and 57, the petitioners preferred the instant Writ Petitions Nos. 17935 to 17939 of 2002 before this Hon’ble court.
(c) The respondent BDA entered appearance and filed their statement of objections disputing the same. No objections were filed by the State.
(d) On considering the contentions, the learned Single Judge, by the impugned order, dismissed the writ petitions with costs of Rs.25,000/-. Questioning the said order, the instant appeals are filed.
5. Sri. B.V. Acharya, the learned Senior Counsel appearing for the petitioners’ counsel, contends that the learned Single Judge has failed to consider the material and contentions placed before him. That there was no real contest even by the BDA, in sustaining the scheme. Learned counsel for the BDA had made an erroneous submission before the learned Single Judge, that an extent of 102 acres of land acquired, have been put to use. The same was an incorrect submission on facts. That the substantial delay in issuing the Final Notification under Section 19 of the BDA Act, is fatal to the case of the respondents. That the petitioners continue to be in possession of the lands in question and they have not been dispossessed. That the BDA has itself passed a resolution, not to go ahead with the Scheme. Therefore, it is pleaded that the learned Single Judge has wrongly rejected the writ petitions.
6. Sri. D.N. Nanjunda Reddy, learned Senior Counsel appearing for the counsel representing respondents 2 and 3 (i.e BDA), disputes the same. He firstly contends that there was only one contention urged before the learned Single Judge, with regard to lapsing of the scheme. Therefore, no other contention can be considered by this court. Secondly, even if it is to be held that the Scheme has lapsed, that itself will not constitute a ground to set aside the acquisition. That once the land has vested with the State or the BDA, the said land cannot be divested. That there is a substantial delay in challenging the acquisition proceedings. The Final Notification was issued in the year 1989, whereas the writ petition was filed in the year 2002. The delay is huge and unexplained. Hence, the petition requires to be rejected on that ground alone. The petitioners have approached the Civil Court on two occasions. It is due to their acts, that the Scheme could not be completed. Therefore, they cannot take advantage of their own acts.
7. Even though no objections were filed by the State before the learned Single Judge or before this Court, we have heard submissions of the learned Government Advocate, Sri. E.S. Indiresh, who submits that he adopts the contentions of the learned Senior Counsel appearing for the BDA.
8. Heard Learned Counsels.
9.(a) The preliminary objection of the learned Senior Counsel for the BDA is that, only one ground was urged for consideration before the learned Single Judge. He places reliance on para 2 of the order of the learned Single Judge, wherein it was held that the learned counsel has urged only one contention, that the Scheme has lapsed, since there is no substantial compliance within the statutory period of 5 years as contemplated under Section 27 of the BDA Act. That no other contentions have been advanced. Therefore, the applicants cannot be permitted to urge grounds they have not pleaded before the learned Single Judge. Therefore, the learned Single Judge has considered the sole contention urged by the petitioners. Furthermore, by relying on the prayer sought for in the writ petition, he contends that there was no challenge to the acquisition proceedings.
(b) We are unable to accept the said contention.
The very order of the learned Single Judge at para 5, would indicate that notwithstanding the contention on Section 27 of the BDA Act, a contention was raised by the petitioners, wherein it was pleaded that there being a delay of close to 15 years in questioning the acquisition, that should not be held against the petitioners. Therefore, the contention that there is a delay in issuing the Final Notification, was not only a ground urged by the petitioners, but also referred to by the learned Single Judge in para 5 of the order. In the writ petition, prayer (iii) is for a writ, order or direction in the nature of a mandamus declaring that the Preliminary Notification dated 02.06.1978 and the Final Notification published in the Karnataka Gazette on 02.02.1989, have lapsed and became null and void and unenforceable. Therefore, a specific prayer on acquisition, has been made by the petitioners in the writ petition. In fact, we even noticed from the statement of objections filed by the respondent/ BDA, that they have specifically objected to the challenge to the acquisition proceedings. They have also contended that the petitioners challenge to the acquisition proceedings on the ground of substantial delay should be rejected. Therefore, the contentions of the BDA that only one contention was raised, may not be correct, based on the order of the learned Single Judge at para 5 as well as the statement of objections filed by the BDA themselves. Furthermore, having held in para 2 of the order that what is challenged is only the lapse of the scheme, the learned Single Judge in para 17 of his order, comes to the conclusion that the petitioners have successfully thwarted the acquisition proceedings and therefore they are not entitled for any of the relief sought for. Therefore, this reasoning assigned by the learned Single Judge, necessarily pertains to the acquisition proceedings and not to the Scheme. For the reasons stated therein, the learned Single Judge holds, that it is the petitioners who are responsible for thwarting the acquisition proceedings and hence, he declines to grant relief to them. Therefore, the contention of the BDA that there is no ground with regard to the challenge to the acquisition proceedings, may not be a true reflection of the records, pleadings, statement of objections or even the order of the learned Single Judge. Therefore, the objection of the BDA, on this issue cannot be accepted.
10.(a) It is further contended by the learned Counsel for the BDA, that the learned Single Judge was justified in coming to the conclusion that the petitioners having filed suits, have therefore prevented the BDA from going ahead with the Scheme. Therefore, the learned Single Judge came to the conclusion at one stage, that since the petitioners have thwarted the acquisition proceedings themselves, they cannot now contend that the Scheme is not implemented within the statutory period of 5 years and therefore, the same would lapse in terms of Section 27 of the BDA Act. Therefore, the delay if any in the implementation of the scheme, cannot be attributed to the respondents. That right from the publication of the Final Notification, the petitioners have filed two suits and obtained an interim order of injunction preventing the respondents from implementing the scheme. Therefore, the petitioners themselves are responsible and hence no relief could be granted to them.
(b) What was to be considered by the learned Single Judge was the contentions of the petitioners, that the Scheme has not been substantially implemented within the period of 5 years as contemplated under Section 27 of the BDA Act. While considering such a contention, the learned single Judge relied on the submissions made by the learned counsel for the BDA, that 102 acres of land have been put to use under the Scheme. On placing reliance on the submission made by the BDA counsel, it was held that there was substantial implementation of the scheme.
11. During the pendency of these appeals, the Division Bench noticed various anomalies, the error in the acquisition proceedings, the manner in which the proceedings have been conducted by the BDA and the State, the conduct of the respondents etc. The Bench noticed with anguish that the facts and circumstances involved in the case show that the respondents have taken nearly 11 years to consider the objections filed to the preliminary notification and thereafter, issued the final notification. That the acquisition under the preliminary notification was to the extent of 982 acres 6 guntas, which was scaled down to 433 acres 32 guntas, 10 years later by the final notification and thereafter, award has been passed only to an extent of 97 acres 7 guntas. The Bench observed the lack of due diligence on the part of the BDA in formulating the development Scheme. Even as on the said date, no layout has been formed and no site has been allotted to any body. It was therefore held that in order to decide the appeals in a meaningful manner, certain facts had to be brought out from the records of the respondents. Therefore, the respondent / BDA by the order dated 09.10.2012 were directed to furnish particulars as raised by the Bench in the aforesaid order, which reads as follows:
“8. The Bangalore Development Authority shall state the following particulars in the form of affidavit duly sworn to by a responsible officer of the BDA;
(1) When 982.06 acres of land was notified as required for the development Scheme under Section 17(1) of the Act, why there was a delay of 11 years in issuing final notification on 02.02.1989?
(2) Why only 433.32 acres were notified for acquisition under Section 19(1) of the Act, whether the authority has undertaken any survey before drawing up a development scheme under Section 15 and 16 of the Act. If so, to furnish particulars by way of annexure to the affidavit.
(3) If in the scheme formed under Section 15 and 16 they needed 982.06 acres, why it was reduced to 433.32 acres at the time of final notification?
(4) Even after final notification in the year 1989, when they are able to pass an award in respect of 107 acres 38 guntas on 18.08.1989, why even after 23 years, no award has been passed in respect of 325.34 acres of land?
(5) What is the difficulty in taking possession of the land.
(6) In 97 acres 7 guntas of land, the possession of which is taken, have they formed any layout. If so, to produce the layout plan.
(7) Whether any denotification has been done in respect of lands the possession of which is taken under notification under Section 16(2) of the Act.
(8) In respect of 10 acres 31 guntas of land, when award is passed, why possession is not taken.
(9) the Government shall make available the records pertaining to denotification containing request for denotification and ground on which denotification was granted.
(10) The status of litigation and the lands which are covered under the litigation.
(11) Steps taken by the BDA and the Government for the speedy disposal of the cases. Whether Counsel are engaged in all the cases and what steps the Counsel have taken for speedy disposal.
(12) Whether the Government or BDA has any plans to tackle this problem of litigation by forming a Special Cell for speedy disposal of cases, which are pending in the Courts.
(13) What is the average time taken from the date of the notification under Section 17(1) of the Act till the date of allotment of sites, in respect of the layouts formed by the BDA in the past three decades.
(14) In all such cases what is the total extent of land notified under Section 17(1) of the Act, Section 19(1) of the Act, the extent of land denotified and the extent of land in which the layout is formed.
(15) The High Court Registry is directed place on record the status report of all the cases referred to in para 7 of the order within a week from today.
Registry is directed to furnish a copy of this order both to the learned Counsel appearing for the BDA as well as the learned Government Advocate.
Call on 18.10.2012 for compliance.”
12. In pursuance thereof, an affidavit has been filed by the respondent/BDA on 02.11.2012. In view of the material placed on record that there was rampant de- notification made by the State, yet another Order dated 06.11.2012 was passed by the Bench directing the Government Advocate to produce the De-notification Order dated 04.01.2010 with respect to Survey Nos.100/1, 100/2, 6/2A, 6/2B, 134 and 136 of the said village. Since the said notification was not produced, by the Order dated 27.02.2013 one more opportunity was granted with a specific note that if the order of the Bench is not complied with, the same would result in issuance of a contempt notice. It is submitted by the learned Government Advocate, that the said order was complied with on 14.03.2014.
13. The respondent/BDA had filed their statement on 08.06.2012 with regard to the status of the layout and why the layout could not be formed. During the course of hearing of the appeals, as directed, yet another statement was filed on 09.07.2012. Since a further clarification was sought for by the Court, yet another statement was filed by the BDA on 17.09.2012.
14. Therefore, the submissions made by the learned counsel for the BDA before the learned Single Judge, runs contrary, not only to the material, but also to the very affidavits filed by the BDA officials, in the course of these appeals. The affidavits filed in these appeals do not support the submission on implementation of scheme. Therefore, the findings of the learned Single Judge being based on the erroneous submission, the same cannot be sustained. Based on the material produced by the BDA, the learned single judge has been misled on facts.
DELAY IN CHALLENGING THE PROCEEDINGS :
15.(a) The contention of the respondent-BDA is that there is substantial delay in challenging the acquisition proceedings. That the conduct of the petitioners themselves, would disentitle them to any relief. In pursuance whereof, it is contended that the writ petitioners had filed O.S. No.1875 of 1989 seeking for a declaration that the preliminary and final Notifications with regard to Hennur-Bellary Road III Stage is illegal, void for a permanent injunction, etc. An interim injunction restraining their dispossession, not to demolish the structures and not to pass any award was granted by the trial Court. The Suit was dismissed on 22.11.1995. Thereafter, yet another Suit was filed by the petitioners in O.S.No.7128 of 1996 for a bare injunction. The Suit was dismissed as withdrawn in the year 2001. The instant writ petitions were filed in the year 2002. Hence, there is a substantial delay in approaching this Court.
(b) The respondent – BDA contend that the delay has to be reckoned from the date of final Notification up-to the date of filing the writ petition. The final Notification was issued in the year 1989, the writ petitions were filed in the year 2002. Therefore, there is 13 years delay in challenging the acquisition proceedings.
(c) The same is disputed by the petitioners’ counsel. He contends that the earlier Suit was dismissed as not maintainable in the year 1995. Thereafter, the respondent attempted to disturb their possession, which prompted them to file the second Suit. That Suit was dismissed as withdrawn in view of the fact that the petitioners were under the impression that since the entire Scheme had lapsed and the BDA was not proceeding further with the acquisition, they need not litigate the said issue. It is only when the BDA again started disturbing their possession and sought to interfere with their property, that the instant writ petitions were filed. They have been consistently protecting their legal rights. They have not slept over their rights. Therefore, there is no delay at all in filing the writ petitions.
(d) So far as the relevant dates are concerned, the first Suit was filed in the year 1989 and dismissed in 1995. The second suit was filed in 1996 and was dismissed in the year 2001. The writ petitions were filed within a year thereafter in the year 2002. Therefore, the material on record would indicate that the petitioners were prosecuting their rights before various Courts seeking various reliefs. Therefore, it cannot be said that they kept quiet without exercising their legal right or that delay has occasioned. Delay would occur when the right of a litigant is not exercised by him, within the time frame. That the case of a litigant, would be hit by delay, if he has slept over his rights. However, it is not the case herein. They have been continuously agitating their rights. Whether they were agitating their rights in an appropriate Court or not, is a secondary question. What is of importance is that, they have not slept over the matter. It is not for the first time that they have woken up and filed the writ petition to protect their rights. That the Final Notification was issued in 1989. The first suit was filed in the year 1989 which was dismissed in 1995. The second suit was filed in 1996 which was dismissed in 2001. Thereafter, the instant writ petitions were filed in the year 2002. Therefore, it can be concluded that the petitioners were consistently prosecuting their rights in a Court of law. Therefore, the petitioners were vigilant in defending their rights.
(e) Therefore, even if the delay is to be considered it has to be reckoned from the date of dismissal of the second suit. The second suit was disposed off in 2001. A year later, the writ petitions were filed. Therefore, the delay if any is only of the period between 2001 and 2002. Therefore, there was no delay in challenging the acquisition proceedings.
(f) The delay as contended by the respondent – BDA would have been considered provided there were no proceedings in the intervening period. The material on record would indicate that consistent proceedings were initiated commencing from filing of the suit in the year 1989 which was dismissed in 1995. The second suit was filed in 1996 and dismissed in 2001. Thereafter, the instant writ petitions were filed in the year 2002. Therefore, the delay cannot be reckoned from the date of final Notification up-to the date of filing the writ petition. Since the petitioners were consistently agitating their rights, it cannot be said that there was delay in challenging the acquisition proceedings.
(g) Yet another aspect to be considered is that the challenge in the writ petition is on the ground of lapsing of the scheme as a result of the inaction by the BDA in implementing the Scheme. Therefore, every day’s delay in implementing the scheme, would aid the cause of action. When the scheme is being challenged on the ground that it has lapsed due to efflux of time and non-implementation of the scheme, the delay would accrue to the benefit of the writ petitioners. Therefore, the delay cannot be held against them.
(h) The learned counsel for the respondents submits that when there is delay and laches in approaching the Court, whether the same has to be ignored or not, is a question that was referred to a larger Bench in terms of the order dated 27.3.2018 passed by the Hon’ble Supreme Court in the case of UNION OF INDIA AND OTHERS –vs- GOPALDAS BHAGWAN DAS AND OTHERS in CIVIL APPEAL No. 3636 of 2016. Therefore, he pleads that when the said question would be answered by the Hon’ble Supreme Court, thereafter it could be made applicable to the facts of these cases. However, we are of the view that the said order would not be applicable to the facts of the case herein. We have categorically held that there is no delay in filing the writ petitions. The applicability of the matter referred to a larger Bench of the Hon’ble Supreme Court, would arise, only in a case where there is a delay per se in approaching the Court and consequently as to how and in what manner the delay has to be construed. Since a finding is recorded herein, that there is no delay in approaching this Court, we are of the view that referral of the said matter to a larger bench would not be of any avail to the respondent.
REGARDING VESTING OF THE PROPERTY:
16.(a) In support of his contention, the learned counsel for the BDA relies on the material before the Court, to indicate that possession of the land in Survey No.57/1 was taken on 19.10.1989 and possession of the land in Survey No.57/2 was taken on 16.10.1989. In terms thereof, a Notification dated 16.07.1990 was published in the Gazette on 08.07.1991 under Section 16(2) of the Land Acquisition Act. Therefore, it clearly indicates that possession has been taken. When possession has been taken and a Notification under Section 16(2) of the Land Acquisition Act has been issued, the lands vest with the State/BDA. The lands cannot be divested from the State / BDA.
(b) Therefore, once vesting takes place the same cannot be a subject matter of adjudication in a court of law. Once the vesting takes place, there cannot be de- vesting. Therefore, the writ petitions require to be rejected. In support of the said contention, reliance is placed on the decision reported in (2011) 3 SUPREME COURT CASES 139 in the case of OFFSHORE HOLDINGS PRIVATE LIMITED VERSUS BANGALORE DEVELOPMENT AUTHORITY AND OTHERS, by relying on para 38 which reads as follows:
“ ….. On vesting, the land stands transferred and vested in the State/Authority free from all encumbrances and such status of the property is incapable of being altered by fiction of law either by the State Act or by the Central Act”.
Therefore, he contends that the question of divesting would not arise for consideration.
(c) The learned Senior Counsel for the petitioners disputes the same. He submits that the question for consideration before the Hon’ble Supreme Court was not on vesting. Firstly, the question that was referred for consideration was whether the provisions of Section 11-A of the Land Acquisition Act can be applied to an acquisition under the provisions of the BDA Act. Therefore, this was the question that was referred to the Constitution Bench. In answering such a question, reference has been made with regard to the issue on vesting. Therefore, the findings of the Hon’ble Supreme Court in para 38 can only be considered as an ‘obiter dicta’ because that was not the question for consideration. Therefore, he pleads that the said Judgment would not be applicable, so far as the question of vesting is concerned.
(d) Secondly, the case of the respondents BDA in taking possession or vesting becomes irrelevant, in view of the order of injunction granted in favour of the petitioners. It is pleaded that the petitioners had filed Original Suit No.1875 of 1989 before the II Additional City Civil Judge, Bengaluru. The decree sought for therein, were for a declaration to declare that the Preliminary and Final Notification for formation of HBR III Stage Layout is illegal, void and rendering themselves infructuous and inoperative under law and also for a decree of permanent injunction restraining the defendants therein from dispossessing the plaintiffs. On the very same day, an application for temporary injunction under Order 39 Rule 1 and 2 of CPC was filed seeking for a direction to the defendants not to dispossess the plaintiffs from the suit schedule properties, secondly, to direct the defendants not to demolish any of the existing structures on the suit schedule properties and thirdly, to direct the defendants not to pass any award with respect to the suit schedule properties. Temporary injunction as prayed for was granted. The learned counsel for the defendants BDA, entered appearance on 12.06.1989. The suit was ultimately dismissed vide Judgment and Decree dated 22.11.1995. Therefore, from the date of filing of the suit, that is on 30.03.1989 up to 22.11.1995, there was an order of temporary injunction as narrated hereinabove, against the defendants. When the defendants have been directed not to dispossess the plaintiffs, that is the petitioners herein, from the suit schedule properties, the defendants, that is the respondents BDA herein, could never take possession of the same. Therefore, it is sufficient to negate the plea of the respondent/BDA, that the possession was not taken on 16.10.1989 and 19.10.1989.
(e) This is opposed by the learned Counsel for the BDA by relying on the Judgment of the Hon’ble Supreme Court reported in (1995)4 SUPREME COURT CASES 229 in the case of STATE OF BIHAR VERSUS DHIRENDRA KUMAR AND OTHERS with reference to para 3. In the facts and circumstances therein, the notification under Section 4(1) of the Land Acquisition Act and thereafter a declaration under Section 6 of the Land Acquisition Act was issued by the State; possession was taken and given to the Housing Board. Several encroachments were made on the land and unauthorized constructions appear to have been put up. Steps were taken by the Housing Board to have the encroachers ejected from those lands. Thereafter, original suit was filed before the trial Court along with an interlocutory application under Order 39, Rule 1 of CPC for an ad- interim injunction. The trial Court having found that a prima facie case having been made by the plaintiff, granted an injunction restraining the defendants from dispossessing the plaintiffs from the land in question till the disposal of the suit. The same was challenged before the High court, which was modified by ordering status quo. That order was challenged before the Hon’ble Supreme Court. The Hon’ble Supreme Court held that the Civil Court has no jurisdiction to go into the question of the validity or the illegality of the notification of acquisition. The same can be done only by the High Court in a proceeding under Article 226 of the Constitution. Therefore, the civil suit itself is not maintainable. When such is the situation, the finding of the trial Court that there is a prima facie triable issue is unsustainable.
Learned Senior Counsel for the BDA extends his argument by contending that since the suit itself is not maintainable, an interim injunction could not be granted. Since the trial Court has granted the interim injunction, the same is bad in law.
(f) On hearing learned Senior Counsels, we are unable to accept the contention of the learned counsel for the respondents BDA. The Hon’ble Supreme Court in the case of Dhirendar Kumar, held that since the possession was already taken and handed over to the Housing Board, the order of injunction was without jurisdiction and hence the suit itself was not maintainable. However, in the instant case, the possession has not been taken over by the BDA at all. The material on record would indicate that even though the BDA had immediately put in appearance in the suit, there was no application to vacate the injunction operating against them. For the next 6 [six] years there was not even an application filed by the defendants BDA, seeking to vacate the ex-parte order of temporary injunction. No efforts have been made to get it vacated. The suit was subsequently dismissed on 22.11.1995. Therefore, it is only on the day when the suit was dismissed, the interim order of injunction granted against the defendants BDA, would stand dissolved. As long as the suit was pending and as long as the interim order of injunction was in force, the BDA could not take possession. Therefore, the contention of the BDA is unacceptable.
(g) On the other hand, if the contention of the BDA is to be accepted, the same would amount to disobedience of the Court order attracting contempt. The records of the Trial Court would disclose that right up to 1995, the order of injunction prevented the defendants BDA from taking possession of the suit schedule properties etc. Therefore, the alleged possession of the suit schedule properties on 16.10.1989 and 19.10.1989, cannot be accepted.
(h) It is the further contention of the learned Senior Counsel for the respondents BDA, that the records namely the mahazar would indicate that the possession has been taken in accordance with law in the presence of the panchas. We have considered the mahazar produced by the BDA for both the lands. It would indicate that the same is in a cyclostyle form. The presence of the owner is not found. The owner or the person present at the time of drawing the mahazar has been deleted. Therefore, it would show that the owner was not present when the possession was taken. Secondly, the signature made on the mahazar is sought to be argued as that of the owner. This we find rather hard to accept. There is no material to indicate that the said signature on the mahazar, belongs to the owner himself.
(i) The further objection to the mahazar by the petitioner, is that the panchas who signed the mahazar, were not identifiable. On considering the records, we find certain signatures/initials in the mahazar which are not relatable to any person. As held by the Hon'ble Supreme Court in a number of decisions, the Mahazar witnesses are required to be identified. One would have to know who was the witness to the Mahazar. If the witnesses cannot be identified, then the witness of such persons, cannot be accepted. There is no material, as to who have signed this document, what are their names, where they are residing etc. No such particulars are forthcoming. Therefore, the Mahazar witnesses cannot be relied upon.
(j) Learned Senior Counsel for the respondents BDA relies on the decision of the Hon’ble Supreme Court reported in (2011) 5 SUPREME COURT CASES 394 in the case of BANDA DEVELOPMENT AUTHORITY, BANDA VERSUS MOTILAL AGARWAL AND OTHERS in order to show that valid possession of the land has been taken. In support of his argument, reliance is placed on para No.37 of the said Judgment, wherein the principles are culled out with regard to taking possession of the land. Therefore, it is contended that all these parameters have been complied with. The same is disputed by the learned Senior Counsel for the petitioners, on the ground that there were structures on the land. Admittedly, the mahazar itself indicates that there were structures. Therefore, when there were structures on the land, Clause No.(iii) mentioned in the said Judgment would become applicable. Para 37 of the aforesaid judgment reads as follows:
“37. The principles which can be culled out from the above noted judgments are:
(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land.
(ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchanama will ordinarily be treated as sufficient to constitute taking of possession.
(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchanama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.
(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.
(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilized in furtherance of the particular public purpose, then the court may reasonably presume that possession of the acquired land has been taken.”
(k) Therefore, Clause(iii) would clearly postulate that whenever any building / structure exists, then merely going to the spot by the authority concerned, will not by itself be sufficient for taking possession. The authority will have to give notice to the occupier of the building / structure. In the instant case, admittedly there were structures on the property. That there is nothing to indicate that notices were issued to the occupiers of the said structures. Therefore, it is in gross violation of the order of the Hon’ble Supreme Court. Therefore, it cannot be said that possession has been taken in a manner known to law.
(l) Clause-(v) would also indicate that, if the beneficiary is the instrumentality of the State and 80% of the total compensation is deposited in terms of Section- 17(3-A) and further if substantial portion of the acquired land has been utilized in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the land has been taken. In the instant case, firstly, there is no material to indicate that 80% of the total compensation has been deposited. Even assuming that 80% of the total compensation has been deposited, the second portion of the Clause has not been complied with, as a substantial portion of the acquired land has not been utilized. Therefore, when substantial portion of the land has not been utilized, there cannot be a presumption that possession of the acquired land has been taken. Hence, on this issue also, it cannot be said that possession has been taken nor can there be a presumption that possession has been taken.
17.(a) Yet another contention advanced by the learned Senior Counsel for the respondents BDA, is based on the Award that has been passed. It is contended that the petitioners have participated in the proceedings and the Award has been passed. That once the claimants have participated in the award proceedings, they cannot go behind it. It is further pleaded that the Land Acquisition Officer while considering the case of the claimants held at page Nos. 22 and 23 therein, that even though the plaint copy in O.S. No. 1875 of 1989 filed by the plaintiffs were produced and that there was a temporary injunction against the defendants, the BDA Advocate, has moved the reference Court and the reference Court has noted as follows:
“It is clarified that ad-interim order of temporary injunction order is passed only in respect of demolishing the structures in the suit schedule property.”
Therefore, it is contended that since the temporary injunction has been modified by the trial Court, the temporary injunction, remained only with regard to demolition of the structures. To this, we asked the learned Senior Counsel for the respondents BDA to support his submission by producing the original order passed by the trial Court. No such order is produced. We fail to understand as to how such a submission could be made by the BDA without proof with regard to the actual order of the trial Court. It would appear that an incorrect statement has been made by the BDA. In the absence of any proof that the initial order of temporary injunction has been modified, necessarily the said order of temporary injunction, continued till the disposal of the suit. Admittedly, no application was filed by the BDA either to modify, clarify or vacate the said order. In such circumstances, the Trial Court could not have suo-motu clarified the order. Therefore, the contention of the learned Senior Counsel for the respondents BDA, that the order of temporary injunction has been clarified, and therefore, possession has been taken, is not only incorrect, but runs contrary to the records.
(b) Furthermore, it could be seen that the application for a temporary injunction was granted as prayed for. The order of temporary injunction also included an order directing the defendants not to pass any award, which was granted by the trial court. The application for Temporary Injunction reads as follows:-
“Under Order-39, Rules-1 and 2 read with Section-
151 of the Code of Civil Procedure, that for the reasons sworn to in the accompanying affidavit, the plaintiffs pray that this Hon’ble Court may be pleased to pass an order of temporary injunction restraining the defendants from in any way interfering with the suit properties and from demolishing the existing constructions thereon and from passing of the awards or from dispossessing the plaintiffs from the schedule property pending disposal of the suit.
xxx xxx xxx xxx”
The temporary injunction as prayed for was granted. That order has remained till the disposal of the suit. As stated hereinabove, no effort was made to vacate or modify the said order, which remained till the disposal of the suit. Therefore, there is an injunction that no award should be passed. So if the entire contentions of the respondent-BDA is to be accepted, the same would amount to disobedience of the order of the trial court inviting contempt. Therefore, when there is a specific injunction operating against the defendants which included an injunction not to pass any award, passing of such an award is void. The contention of the BDA that the petitioners participated in the award, therefore, is not borne out from the records.
18.(a) The Commissioner, BDA has filed an affidavit dated 01.10.2012 before this court. He has stated therein, with regard to the extent of the lands which were part of the Preliminary Notification, Final Notification, lands covered, Award, possession taken, etc. He has further stated in the affidavit that the petitioners have prevented the respondents BDA from forming the layout in the said lands by resorting to civil litigations by obtaining interim orders in O.S. Nos.1875 of 1989, 7128 of 1996 and 1786 of 1989 etc. That O.S. No.1786 of 1989 was decreed on 27.08.1992 and the respondents BDA filed an appeal in R.F.A. No.119 of 1994 before the High Court, which was allowed on 04.01.2002. He has also narrated the extent of the land and the Award passed, but possession is not taken to the extent of 10 acres 31 guntas of the land of the petitioners. Therefore, the Commissioner, BDA has himself stated on oath that the possession of the lands of the petitioners has not been taken.
(b) In the statement of objections dated 02.11.2012 filed by the respondents – BDA it is stated in para 8 that in respect of the lands of the appellants, the possession could not be re-taken, which is the subject matter of these appeals. Therefore, there is a clear admission of the respondents BDA themselves, that the possession has not been taken.
(c) In view of the statement of objections filed, the affidavit of the Commissioner of the BDA, the order of temporary injunction passed by the trial Court and the records, we have no hesitation to hold, that the BDA has not taken possession of the lands at all and that the possession of the land continues to remain with the petitioners even as on date. Therefore, when the possession has not been taken by the respondents, the question of vesting would not arise. Hence, there is no vesting.
REGARDING LAPSING OF THE SCHEME:
19.(a) The plea of the petitioners is that the Scheme has not been implemented by the respondent- BDA. That the acquisition was a result of the scheme as propounded by the BDA. Consequently, a preliminary Notification in the year 1978 and a final Notification in the year 1989 were issued. The preliminary Notification was to an extent of 982 acres 6 guntas. The final Notification was to an extent of 433 acres 32 guntas. Therefore, an extent of 548 acres 14 guntas were excluded. The admitted position is that, awards were passed only in respect of 97 acres 7 guntas of land and there is no award passed to an extent of 325 acres 24 guntas. It is further contended by the petitioners, that not a single plot has been developed or allotted to anyone.
(b) The learned Senior Counsel for the petitioners relies on the order passed by the learned Single Judge of this Court dated 19.03.1997 passed in Writ Petition Nos. 14674 to 14678 of 1989. The said writ petitions were filed by certain land owners, questioning the very Preliminary and Final Notifications as impugned herein. The learned Single Judge was of the view that no explanation was given by the BDA for the delay of 11 years in issuing the final notification. Therefore, the learned Single Judge came to the conclusion that the acquisition proceedings are vitiated. Consequently, the writ petitions were allowed and the Preliminary and Final Notifications were quashed so far as the petitioners were concerned. Therefore, it is contended that once the acquisition proceedings have been quashed by the order of this Court, on the ground of delay, the said reasoning also applies to other litigants under the same notification.
(c) The same is disputed by the learned Senior Counsel for the respondent-BDA. He contends that the question of applying the order passed by the learned Single Judge in Writ Petition Nos.14674 to 14678 of 1989 would not arise for consideration. It is contended that the said order is not applicable to the writ petitioners herein. That firstly, there is no declaration that the Scheme has lapsed. Secondly, even though in terms of the said order, the acquisition has been quashed, the quashing of the acquisition would be relatable only so far as those writ petitioners are concerned and cannot be extended to the petitioners herein.
(d) The earlier learned Single Judge, has clearly stated that no explanation has been offered by the BDA for the delay of 11 years in issuing the Final Notification, which causes injuries to the land owners etc. Therefore, when findings were already recorded by the learned Single Judge, which attained finality, necessarily the same principle would stand applicable to the case of the petitioners herein. The material on record would also indicate that aggrieved by the order of the learned Single Judge, the BDA had filed Writ Appeal No.3519 of 1999 and Writ Appeal Nos.4536-4539 of 1999. By the order dated 7-4-2000, the writ appeals were dismissed by virtue of a peremptory order. The dismissal order has remained. Hence, the appeals are liable to be allowed on this ground.
(e) Various material have been produced before this Court with regard to lapsing of the Scheme. Pursuant to the queries raised in the process of considering these Writ Appeals, the respondent-BDA, filed a statement dated 2.11.2012 supported by the affidavit of the Deputy Commissioner, BDA. Therein, in paragraph 8, it is narrated that in respect of 10 acres 31 guntas of land viz., the land belonging to the writ petitioners, the possession of the land could not be retaken. It is narrated that the layout could not be formed on lands where the possession has been taken in view of the land being in unauthorized occupation. Various particulars are narrated therein. It is also further narrated that no layout plan has been prepared in respect of Hennur-Bellary Road III Stage.
(f) Therefore, even while considering the affidavits filed by the respondent-BDA, there is a clear admission that the Scheme has not been implemented. There is no material produced by the BDA, even now, to show that even a single plot has been developed or handed over to any one at all. Therefore, the question of holding that the Scheme has been substantially implemented is not supported by any material on record. Moreover in the affidavits of the respondent-BDA, it is stated that there has been no development of the land under the Scheme, and not even a single plot has been developed. Therefore, the scheme has not been implemented. Therefore, based on the various affidavits of the BDA, we have no hesitation to hold that the Scheme has lapsed.
REGARDING WITHDRAWAL FROM ACQUISITON BY THE BDA 20. The further plea of the petitioners is that the respondent-BDA has produced a resolution dated 18.11.2000 passed in Resolution No.147 of 2000. The same is produced herein as Annexure-E to the Writ Appeal. We have considered the same. The same would indicate that a Resolution was passed by the respondent-BDA to drop the proceedings with regard to the said layout, which Resolution was forwarded to the Government. The learned Government Advocate submits that having received the said Resolution, the same is pending consideration. Under these circumstances, the petitioners contend that when the BDA itself has sought to withdraw from the acquisition or to drop the acquisition, the question of continuing the Scheme or the acquisition would not arise for consideration under any circumstances. The resolution was passed on 18.11.2000. Even after 19 years, the file is still pending consideration by the State. Therefore, this clearly implies that the State has no interest in continuing with the acquisition and therefore no orders have been passed thereon. Therefore, once the BDA themselves have passed a resolution they cannot now seek to contest the acquisition or the lapse of the scheme. Therefore, we find that this is also an additional ground to allow the Appeals.
ALTERNATE PLEAS BY BDA:
21.(a) At this stage, the learned Senior counsel appearing for the respondent–BDA contends that even assuming that the Scheme is held to have lapsed or could not be implemented or has been abandoned, that by itself would not automatically render the acquisition proceedings to be quashed. In support whereof, he relies on the Judgment of the Hon’ble Supreme Court in the case of OFFSHORE HOLDINGS PRIVATE LIMITED VERSUS BANGALORE DEVELOPMENT AUTHORITY AND OTHERS reported in (2011)3 SCC 139 with reference to paragraphs 37 to 40. It is therefore contended that, as held by the Hon’ble Supreme Court in paragraph 38, the acquisition would not lapse or terminate as a result of lapsing of the Scheme under Section 27 of the BDA Act. That since vesting of the land has taken place; the status of the property is incapable of being altered by fiction of law either by the State Act or by the Central Act.
(b) As already held hereinabove, so far as the question of vesting of the lands are concerned, we have categorically come to the conclusion that there is no vesting of land that has taken place in favour of the State or the BDA. Therefore, the decision is not applicable to the facts and circumstances involved herein.
(c) The Scheme of the BDA Act postulates that the acquisition of land could only be done on a Scheme being propounded by the BDA. The Scheme being sanctioned by the State, an acquisition could take place. Once it is held that the acquisition has lapsed and it is also held that there is no vesting of land in the State, necessarily the acquisition cannot stand.
(d) It is the further contention of the learned Senior counsel for the respondent-BDA that even if it is to be held that the scheme has lapsed, the BDA is entitled to propound yet another scheme for the utilisation of the petitioners’ land.
(e) We are unable to accept such a contention.
When once the scheme is held to have lapsed and when in the given facts and circumstances of this case, the possession has also not been taken, the question of the BDA retaining possession of the property would not arise for consideration. By the scheme of the Act, the lands can be acquired only on a scheme being propounded by the BDA. No land can be held by the State or the BDA in the absence of any scheme. Therefore, the holding of the land by the BDA is illegal. Furthermore, the acquisition is always pursuant to a scheme. A scheme cannot be propounded of the land which the BDA according to them, continue to be in possession of. Once the Court holds that the scheme has lapsed and the acquisitions are quashed, the possession of the lands by the State or the BDA becomes unauthorised. It cannot retain the land sans any power in law. The land could be retained by the State/BDA only in a lawful manner. When once the acquisition has been quashed and the scheme is held to have lapsed, neither the State nor the BDA can hold on to the lands.
(f) It is further contended by the learned Senior counsel for the respondent-BDA that when once it is held that the Scheme has lapsed, then the Government is entitled to use the land or to direct the BDA to use the land for any purpose that it so orders. Therefore, it is contended that the State, is entitled to use the land for any purpose as it deems fit or transfer it to the BDA, as the case may be. Therefore, the State is entitled to exercise such power as vested in it under Section 37 of the BDA Act.
(g) Firstly, as held hereinabove, the question of vesting has since been answered by us by holding that there is no vesting of land or taking of possession from the petitioners. Furthermore, assuming that the vesting of land has taken place, only then the question of re-vesting could be considered. However, in view of the finding recorded hereinabove, on possession we are of the view that the proposed action of the State, would be unauthorized in law and opposite to the facts of the case. The question of the State retaining the land would not arise for consideration in view of the fact that the acquisition of the land is held to be bad.
(h) If the contention of the learned counsel for the BDA is to be accepted, the same would lead to unacceptable conclusions. If the acquisition is quashed and the scheme is held to have been lapsed by a court of law, the same cannot be retained in order to propound yet another scheme. Assuming yet another scheme is propounded and the same is challenged and the acquisitions is held to be bad, then based on the contentions of the learned counsel for the BDA they can once again hold lands to propound another scheme. This situation would never end at all. However, that is not how law operates. When an acquisition is challenged, it receives a logical end on a final order being passed by a court of law. The question of retention of lands to create yet another acquisition, cannot be accepted. There is no provision in law to enable the state or BDA to retain a land, wherein the acquisition has been quashed and the scheme is held to have lapsed. Once a court of law passes an order, the same attains finality, ofcourse subject to the appellate jurisdiction or interference by a higher authority. The same does not and never can be meant to be read, that the State or the BDA can hold on to the lands forever.
(i) Furthermore, the entire contention becomes invalid since it is based on an assumption that the State/ BDA continue in possession of the land. It is on the basis of this assumption that a contention is being advanced. When a categorical finding has been recorded that the State / BDA is not in possession of the land, the contention of retention of such lands, therefore, becomes misplaced. Therefore, the basis of the very contention does not exists to advance such a contention.
22. Therefore, in conclusion, we are of the view that the writ petitions require to be allowed. The material on record would indicate that 982 acres 6 guntas of land were sought to be acquired. 548.14 acres were dropped from the final Notification. Therefore, what remained was only 433.32 acres. Out of 433.32 acres, award has been passed only for 97.07 acres. There is no award for the remaining extent of land. The possession has not been taken from the writ petitioners. Not even a single plot of land has been developed. The respondent-BDA themselves have stated in more than one affidavit that possession has not been taken and the scheme has not been implemented. The respondent-BDA have already passed a resolution to drop the proceedings. Therefore, they cannot contend to the contrary. Therefore, virtually no ground exists either to sustain the scheme or the acquisition.
23. Under these circumstances, we are of the view that the Scheme having lapsed and for the reasons recorded hereinabove, the acquisition also becomes bad in law.
24. For all the aforesaid reasons, the Writ Appeals are allowed. The order passed by the learned Single Judge dated 12th April 2007 in Writ Petition No. 17935 of 2002 by the 5 writ petitioners therein is set aside. The Writ Petition is allowed so far as the petitioners are concerned, in the following terms:
i) Hennur-Bellary Road III Stage layout is held to have lapsed.
ii) The preliminary Notification dated 2.6.1978 to an extent of 3 acres 28 guntas in Survey No.57/1 and 6 acres 39 guntas in Survey No.57/2 on Nagawara village, Bengaluru North Taluk and the final Notification dated 2.2.1989 for the said lands are quashed;
iii) All further proceedings thereto shall stand quashed.
Sd/- Sd/-
JUDGE JUDGE Ksm / ln