IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3rd DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL WRIT PETITION No.33136 OF 2015 (LA-BDA) BETWEEN:
Sri D.M.Jagadish, Aged about 48 years, S/o.Late D.M.Muniyappa, R/at No.267, Dasarahalli, Hebbal Farm Post, Kempegowda Main Road, Bangalore – 560 024. .. Petitioner (By Sri K.Shashi Kiran Shetty, Senior Counsel for Sri Kiran J., Advocate) AND:
1. The State of Karnataka by Department of Housing and Urban Development, Represented by its Principal Secretary, Multistoried Building, Bangalore – 560 001.
2. The Bangalore Development Authority, By its Commissioner, Kumar Park West, Bangalore – 560 020.
3. The Special Land Acquisition Officer, Bangalore Development Authority, Kumar Park West, Bangalore – 560 020. .. Respondents (By Sri Vijaya Kumar A.Patil, AGA for R1: Sri K.Krishna, Advocate for R2 and R3) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the final notification dated 18.6.2014 issued by the R1 vide Annexure-G, direct the R2 and R3 to reconsider the case of the petitioners in the light of the exclusion of the land lying on the western, northern and southern side of the land of the petitioner and to direct the respondents not to dispossess the petitioners from the land in question until the re-consideration of the case of the petitioner and etc.
This writ petition, coming on for orders, this day, the court made the following:
ORDER Petitioner is the owner of 2 acres 20 guntas of land comprised in Sy.No.64/3 of Dasarahalli Village, K.R.Puram Hobli, Bengaluru East Taluk. Out of the same, an extent of 2 acres was notified for acquisition for formation of Arkavathi Layout by the B.D.A. as per final declaration published on 23.02.2004. This acquisition was challenged by the father of petitioner in W.P.Nos.45695- 97/2004. The writ petitions were allowed quashing the acquisition. On appeal in W.A.No.2624/2005 and connected cases disposed of on 25.11.2005 (reported in ILR 2006 Kar.318), while upholding the acquisition, several directions were issued to the B.D.A. with regard to the need for excluding the sites of owners from the acquisition.
In paragraph 106 (1)(D) the Division Bench held that the landowners were entitled to the following reliefs:
“(i) All the petitioners who are the land owners who are seeking dropping of the acquisition proceedings in so far as their respective lands are concerned, on the ground that: (a) their lands are situated within green belt area; (b) they are totally built up; (c) properties wherein there are buildings constructed by charitable, educational and/or religious institutions (d) nursery lands; (e) who have set-up factories (f) their lands are similar to the lands which are adjoining their lands but not notified for acquisition at all, are permitted to make appropriate application to the authorities seeking such exclusion and exemption and producing documents to substantiate their contentions within one month from the date of this order.
It is made clear that the BDA shall consider such request keeping in mind the status of the land as on the date of preliminary notification and to exclude any developments, improvements, constructions put up subsequent to the preliminary notification land then decide whether their cases are similar to that of the land owners whose lands, are notified for acquisition, notified and whose objections were upheld and no final notification is issued. In the event the BDA comes to the conclusion that the lands of those persons are similarly placed, then to exclude those lands from acquisition.
(ii) Petitioners who are interested in availing this benefit shall make appropriate application within 30 days from the date of this order and thereafter the BDA shall give notice to those persons, hear them and pass appropriate orders expeditiously.
(iii) Till the aforesaid exercise is undertaken by the BDA and the applications filed by the petitioners either for allotment of site or for denotifying or exemption sought for are considered their possession shall not be disturbed and the existing construction shall not be demolished. After consideration of the applications, in the light of the aforesaid directions, if the lands are not excluded then the BDA is at liberty to proceed with the acquisition.”
2. It is clear that if the extent of land acquired consists of total built up area as per (i)(b) above and/or the lands of the land-losers are similar to the lands adjoining their lands which are not notified for acquisition at all are permitted to make application to the authorities seeking such exclusion and exemption and produce documents to substantiate their contentions within one month from the date of its order, whereupon the B.D.A. shall consider such request keeping in mind the status of the land and in the event B.D.A. comes to the conclusion that lands of those persons are similarly placed, then the B.D.A. shall exclude those lands from acquisition.
3. Pursuant to this direction, petitioner has made an application within the time prescribed, that is to say, within 30 days urging that lands abutting the lands had been excluded from acquisition and the petitioner was also entitled for exclusion of his land from the acquisition, B.D.A. rejected this application by issuing an endorsement, dated 17.06.2006. This was challenged by filing W.P.No.13198/2006. The said writ petition was allowed quashing the endorsement issued by the B.D.A. with a direction to the Land Acquisition Officer to conduct spot inspection and redo the exercise. Admittedly, B.D.A. has not reconsidered the application and has not passed any order. Though spot inspection was conducted by the Land Acquisition Officer, he did not pass any order in terms of the directions issued by the Division Bench which was reinforced by specific direction issued by the learned Single Judge later. Eventually without complying with the directions issued by this Court, final notification was issued including this land from the acquisition. This is how the petitioner has approached this Court feeling aggrieved by the omissions and commissions of the B.D.A.
4. The short question that falls for consideration is whether the action of the B.D.A. and the State Government in acquiring the land without complying with the directions issued by this Court is legally tenable and justified? If not, whether petitioner is entitled for the relief sought for by him for exclusion of his land from the acquisition?
5. I have heard learned Senior Counsel Sri Shashi Kiran Shetty appearing for the petitioner, Sri K.Krishna, counsel appearing for B.D.A. and Sri Vijaya Kumar A.Patil, learned A.G.A. who represents the respondent State.
6. In the statement of objections filed, the B.D.A. has taken a specific stand that petitioner has already sold the land in question and therefore is not entitled to maintain the writ petition; that the B.D.A. has already taken over possession of the land and has formed 75 sites in the land and out of which 15 sites have been allotted to different eligible allottees and therefore in the absence of the said allottees being made parties to this petition, petitioner is not entitled for any relief. He has also contended by producing Annexure R1 sketch that substantial portion of the land bearing Sy.Nos.64/3 and 64/4 including portion of 65/5 have been acquired and layout has been formed and therefore the request made by the petitioner for exclusion of his land from acquisition does not merit consideration.
7. Learned counsel for the BDA submits that indeed lease-cum-sale deed have been excluded in favour of the allottees in respect of the said 15 sites.
8. Sri Shashi Kiran Shetty, learned Senior Counsel has placed before this Court order passed by the Division Bench of this Court reported in ILR 2006 Kar.318 and the judgment of the Supreme Court reported in 2010 (7) SCC 129. He has also placed for perusal of the Court the order in W.P.No.9232/2006 and connected matters disposed of on 23rd August 2006 by a learned Single Judge of this Court.
9. On perusal of the entire materials on record it emerges that petitioner had partly succeeded in his challenge before this Court to the acquisition proceedings and Division Bench of this Court had issued specific directions to the B.D.A. to conduct spot inspection and to verify certain relevant factors regarding the entitlement of the petitioner for exclusion of his land from acquisition. It is in that background, petitioner was permitted to make a representation within 30 days bringing to the notice of the B.D.A. the relevant factors as detailed in paragraph 106 (1) (D) of the order passed by the Division Bench so as to find out the entitlement of the petitioner for exclusion of his land.
10. It is not in dispute that petitioner indeed submitted his application within the time stipulated. The B.D.A. in fact verified the matter and issued an endorsement rejecting the request. Same was challenged before this Court and was set aside holding that there was non-application of mind to the relevant factors as directed by the Division Bench of this Court. A specific direction was issued to the Land Acquisition Officer to redo the exercise after conducting spot inspection. This only meant that the exercise had to be undertaken afresh as per the directions issued by the Division Bench to find out the entitlement of the petitioner for exclusion of his land from acquisition.
11. There is nothing to show that this exercise was done by the Land Acquisition Officer or by any of the authorities of the B.D.A. They have not passed any order. They have blindly proceeded to forward the entire papers to the State Government for issuing the final notification. The State Government has accordingly issued the impugned final notification. In the circumstances, petitioner is right and justified in contending that the B.D.A. has not followed the directions of this Court and this action has resulted in serious prejudice to the interests of the petitioner.
12. Before issuing the final notification, B.D.A. ought to have applied its mind to the directions of the Division Bench followed by the directions issued by the learned Single Judge and passed an order after conducting spot inspection. Therefore, in normal circumstances, the final notification issued in so far as the land in question is concerned has to be declared as having been vitiated. The fact remains that thereafter the B.D.A. formed certain sites and as many as 15 sites have been allotted in favour of third parties. They are not before this Court. In respect of the remaining land it is urged by the counsel for the B.D.A. that the sites have been formed. But, there is no dispute that no allotments have been made to the third parties and the remaining property is kept intact. Therefore, keeping in mind the interests of the third parties that have intervened, the question for consideration in this petition is restricted to the remaining extent of land so as to find out if petitioner is entitled for exclusion of the same from acquisition by granting appropriate relief.
13. In this connection, petitioner has produced Annexure J sketch and Annexure K map to substantiate that the surrounding lands bearing Sy.Nos.63/1, 63/2, 63/3, 64/1 and 64/2 have been excluded from acquisition while issuing the impugned final notification after considering the entitlement of those land owners as per the directions issued by the Division Bench whereas the case of the petitioners in respect of the very adjoining land bearing Sy.No.64/3 has not been considered and without considering, notification acquiring the land has been published. Indeed, this contention is probabalised and substantiated by the very document produced by the respondents at Annexure R1. It is clear from Annexure R1 sketch that lands lying towards the North, South and west abutting Sy.No.64/3 have been excluded from acquisition. In respect of the eastern portion wherein Sy.No.64/4 is situated, 1 acre 30 guntas have been included. It is therefore clear that the case of the petitioner was eminently fit for being considered favourably keeping in mind the parameters prescribed by the Division Bench. In this connection, it has to be also stated that it is the specific case of the petitioner that he had put up construction in the acquired portion of the land. Indeed this is probabalized by the spot inspection conducted on 27.12.2006, at an earlier point of time, pursuant to the directions issued by this Court that there were two RCC constructions and one bore-well. It is not the case made out by the B.D.A. that these constructions have been put up after the preliminary notification was published. Nothing of that sort emerges from the spot inspection though an assertion is made in the statement of objections that these constructions have come up later. In such circumstances, it has to be stated that if only the B.D.A. had complied with the directions of this Court and passed an order keeping in mind the parameters prescribed by the Division Bench, petitioner would have got the benefit of exclusion of his land from acquisition in view of the exclusion of similarly placed lands abutting the land of petitioner. The omission on the part of the B.D.A. in not discharging its duties as per directions of the Division Bench has landed the petitioner into this legal entangle in as much as he is forced to approach this Court again and again. Indeed, this is the third time petitioner is before this Court in respect of the very same grievance.
14. I do not find any justification to again send back the matter for consideration by the B.D.A. keeping in mind its omissions and commissions adverted to hereinabove particularly, as the facts are unambiguous in as much as the surrounding lands are excluded and constructions have come up in the portion of the land acquired belonging to the petitioner.
15. However, in the meanwhile third party interests have set in in respect of 15 site owners who have been allotted different sites in respect of the other portion of the land belonging to the petitioner. Hence, interests of the innocent 3rd parties has to be kept in mind. Petitioner is entitled for the relief, in respect of the remaining portion of land.
16. Hence, this writ petition is partly allowed. The impugned acquisition proceedings in so far as the remaining extent of land excluding 15 sites formed in the layout and allotted in favour of third parties is set aside. Petitioner shall be entitled for restoration of the said land and retention of the same for his purpose.
Sd/- JUDGE Cm/-