IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE PRADEEP SINGH YERUR WRIT APPEAL NOs.2981-2985 OF 2011 (BDA) BETWEEN:
1. SRI G.C. AGARWAL S/O. P.C. AGARWAL AGED ABOUT 76 YEARS 2. SRI RAKESH KUMAR AGARWAL S/O. G.C. AGARWAL AGED ABOUT 52 YERS 3. PAWAN KUMAR AGARWAL S/O. G.C. AGARWAL AGED ABOUT 47 YEARS 4. M/S. APEX STEEL PVT. LTD. A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1954 REP. BY ITS MANAGING DIRECTOR SRI G.C. AGARWAL 5. SANJAYA KUMAR AGARWAL S/O. G.C. AGARWAL AGED ABOUT 44 YEARS APPELLANT NOS.1 TO 3 & 5 ARE RESIDING AT NO.52/3A, 6TH MILE, MADIVALA BOMMANAHALLI VILLAGE BEGUR HOBLI BENGALURU – 560 068 …APPELLANTS INC.) AND:
(BY SRI. B.N.PRAKASH, ADVOCATE FOR LAWYER 1. HOUSING AND URBAN DEVELOPMENT DEPARTMENT GOVERNMENT OF KARNATAKA REPRESENTED BY ITS SECRETARY DR. AMBEDKAR VEEDHI BENGALURU – 560 001 2. THE SPECIAL LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY KUMARAPARK WEST BENGALURU – 560 020 3. THE BANGALORE DEVELOPMENT AUTHORITY KUMARA PARK WEST BENGALURU – 560 020 REPRESENTED BY ITS COMMISSIONER ...RESPONDENTS (BY SRI RAVI G. SABHAHIT, ADVOCATE FOR R2 AND R3; MR. I. THARANATH POOJARY, AGA FOR R1) *** THESE WRIT APPEALS ARE FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NOS.26806 AND 26982-85/2010 DATED 30.11.2010 AND THE ORDER DATED 25.02.2011 PASSED IN R.P.NO.85/2011 AND ALLOW THE WRIT PETITIONS.
THESE APPEALS COMING ON FOR FINAL DISPOSAL THIS DAY, CHIEF JUSTICE, DELIVERED THE FOLLOWING:
JUDGEMENT
We have heard the learned counsel appearing for the appellants, the learned counsel appearing for the second and third respondents and the learned AGA appearing for the State.
2. Appellants are the writ petitioners. The writ petition relates to properties described in the schedule A to schedule E. It is pointed out that a notification under sub-Section (1) of Section 17 of the Bangalore Development Authority Act, 1976 (for short ‘the BDA Act’) was issued on 15th December 1985 for the purpose of formation of Layout between Hosur Road and Sarjapur Road. A final notification under sub-Section (1) of Section 19 of the BDA Act was issued on 20th November 1986.
On 28th June 1992, an award was passed in respect of an area of 6 guntas out of 26 guntas of the land in Sy. No.44/9 of Bommanahalli Village. Even after lapse of 14 years from the notification under sub-Section (1) of Section 19 of the BDA Act, the acquisition proceedings were not completed. Therefore, writ petitions were filed by the appellants before the learned Single Judge. By the impugned order dated 30th November 1990, the writ petitions were dismissed on the ground of delay and on the ground that the appellants are subsequent Purchasers of the schedule lands. We may note here that initially an appeal against the impugned order was filed, which was permitted to be withdrawn with liberty to file Review Petitions. Thereafter, Review Petition was filed. By an order dated 25th February 2011, the Review Petition was dismissed by observing that the grievance of the appellants is more an imaginary than real. After dismissal of the Review Petition, the present appeals are preferred.
3. The submission of the learned counsel appearing for the appellants is that the ground on which the writ petition was filed challenging the acquisition was the inordinate delay in completing the acquisition proceedings and therefore, petitions could not have been dismissed on the ground of delay. He also pointed out that even after declaration under sub-Section (1) of Section 17 of the BDA Act is made, there is no vesting and there is no embargo on transfer of the schedule lands and therefore, the fact that appellants are subsequent Purchasers after declaration of under sub-Section (1) of Section 19 of the BDA Act issued is not relevant.
4. The learned counsel appearing for the second and third respondents submitted that as the appellants have acquired the schedule lands after a declaration under sub- Section (1) of Section 19 of the BDA Act was made, at the instance of the appellants, challenge to the acquisition cannot be entertained.
5. We have considered the submissions and perused the averments made in the petition. It is true that the appellants have acquired the schedule lands in the year 1986 as acquisition is nearly 10 years after the declaration under sub- Section (1) of Section 19 of the BDA Act, was made. Perusal of Section 19 of the BDA Act will reveal that by a declaration under sub-Section (1) of Section 19 of the BDA Act, there is no automatic vesting of the land subject matter of declaration. Therefore, the finding recorded in paragraph-15 of the impugned order that the appellants have acquired the schedule land after the acquisition was complete, is erroneous. The only other ground for dismissal is set out in Paragraph-14 is the delay of 14 years in filing the writ petition from the date of the declaration under Sub-Section (1) of Section 19 of the BDA Act. The appellants have contended in the writ petition and in particular, in Paragraph No.29 that the acquisition proceedings have lapsed due to inordinate delay in completing the acquisition. It is pointed out that an award has been made only in relation to 6 guntas and possession is not taken over.
6. Therefore, in the facts of the case, considering the grounds of challenge in the writ petition, the same could not have been dismissed on the ground of delay by the learned Single Judge.
7. Accordingly, appeal must succeed and we pass the following order:
(1) Impugned order dated 30th November 2010 is set aside and Writ Petition Nos. 26806 & 26982-85 of 2010, are restored to the file of the learned Single Judge;
(2) The learned Single Judge shall decide the writ petitions on merits in accordance with law;
(3) Appeals are partly allowed in the above terms.
Sd/- CHIEF JUSTICE Sd/- JUDGE VK