IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF DECEMBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL W.P.Nos.18866-867/2014 (LA-BDA) BETWEEN 1. SRI NANJUNDAPPA, S/O LATE SRI MUNISHAMAPPA, AGED ABOUT 87 YEARS, 2. SRI VENKATESH, S/O SRI NANJUNDAPPA, AGED ABOUT 38 YEARS, BOTH R/O KOTHANUR VILLAGE, UTTARAHALLI, BANGALORE SOUTH TALUK, BANGALORE. ... PETITIONERS (By Sri PADMANABHA V.MAHALE, SR.COUNSEL FOR Sri LOHITASWA BANAKAR, ADV.) AND 1. STATE OF KARNATAKA, BY ITS SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, 4TH FLOOR, VIKAS SOUDHA, BANGALORE-560001.
2. BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST, BANGALORE-560020, REP BY ITS COMMISSIONER.
3. THE SPECIAL LAND ACQUISITION OFFICER, BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK WEST, BANGALORE-560020. ... RESPONDENTS (By Sri VIJAYAKUMAR A.PATIL, AGA FOR R1; Sri K.KRISHNA, ADV. FOR R2 & R3) THESE WRIT PETITIONS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO (a) DECLARE THAT THE SCHEME J.P.NAGAR 8TH PHASE BANGALORE UNDER PRLY.NOTIFICATION DT.23.3.1988 VIDE ANN-A & THE FINAL NOTIFICATION DT.9.10.1994, ISSUED BY THE R1 (VIDE ANN-B) SO FAR AS THE PROPERTIES OF THE PETITIONER, APPLYING THE PROVISIONS OF SECTION 27 OF BDA ACT BE DECALRED AS LAPSED; (b) DECLARE THAT THE ACQUISITION PROCEEDINGS INITIATED UNDER THE PROVISIONS OF BDA ACT 1976 FOR THE JP NAGAR 8TH STAGE AS LAPSED ON ACCOUNT OF FAILURE TO IMPLEMENT THE SAME WITHIN 5 YEARS AS CONTEMPLATED U/S.27 & CONSEQUENTLY THERE IS NO VESTING & THEREFORE LANDS BE RESTORED TO THE PETITIONER[THEY ARE ALREADY IN POSSESSION]; (c) CONSEQUENTLY RESTRAIN THE R1 TO R3 FROM INTERFERING WITH THE PROPRIETARY RIGHTS OF THE PETITIOENR IN RESPECT OF THE SCHEDULE PROPERTY IN VIEW OF THE NOTIFICATION AT ANN-A & B – B3 AND TO DECLARE THAT APPLYING THE RATIO IN THE MATTER OF OFFSHORE HOLDINGS PVT., LTD., & ADIKESHAVALU NAIDU & LAKSHMAMMA, & OTHER CASE THE SCHEME HAVING FAILED & IS HIT BY SEC.27 OF THE BDA ACT; (d) QUASH THE ENTIRE ACQUISITION PROCEEDINGS AS NULL, VOID, ILLEGAL, UNENFORCEABLE, UNCONSTITUTIONAL & WITHOUT JURISDICTION, AND ETC.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 26.07.2017, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER 1. Petitioners claim that they are the owners of land bearing Sy. No.169/1 of Kothanur village, Uttarahalli Hobli, Bengaluru South Taluk, measuring 2 acres 9 guntas including 1 gunta kharab. Respondent no.2 – Bengaluru Development Authority (for short, ‘BDA’) issued preliminary notification dated 23.03.1988 published in the Gazette on 09.06.1988 under Section 17(1) & (3) of the BDA Act, for formation of J.P.Nagar 8th Stage Layout. Petitioners filed objections seeking deletion of land. Overruling the objections, final notification dated 19.10.1994 was issued and got published in the gazette on 19.10.1994. Petitioner has filed the present writ petitions seeking a declaration that the scheme for acquisition of the land for formation of J.P.Nagar 8th Stage layout has lapsed in the light of Section 27 of the Bangalore Development Act, 1976 (for short, ‘BDA Act’).
2. It is urged that in W.P.No.2801/2010 and connected cases and also in W.P.No.17379/2008 in the case of V.Krishnappa Vs BDA and Others, this Court has held that due to non-implementation of the scheme substantially, the rigour of Section 27 of the BDA Act operates and the implementation of the scheme in respect of meager extent of land could not be construed as substantial implementation. Hence, the scheme has been declared to have lapsed as regards the lands involved in the said case.
3. It is urged by the petitioner that even in the present case, the same principle is applicable, in as much as, out of 1900 acres and 14 guntas of land notified for acquisition as per preliminary notification, only 123 acres was acquired as per the final notification and even the said extent also has not been fully utilized.
4. Mr. Mahale, learned Senior Counsel appearing for the petitioner contends that respondent-BDA and the State Government have resorted to pick and choose method regarding the land owners for the purpose of acquisition and deletion. It is urged by him that adjacent lands bearing Sy. No.37/2 measuring 2 acres 20 guntas and Sy.
No.38/3 measuring 1 acre 12 guntas have been de-notified on 17.03.2007 vide Annexure-H notification. It is also further urged by him that in respect of the lands situated in Kothanur village including the petitioners land, petitioners were not notified of the award passed as required under Section 12(2) and the amount allegedly determined has not been paid and that petitioner was not served with any proceedings initiated under Section 30 of the Land Acquisition Act. It is also urged that possession of the land has not been taken and the mahazars drawn in that connection were not genuine. It is thus urged that even otherwise, the acquisition proceedings are liable to be declared as having lapsed as the BDA has not deposited or paid the compensation. Reliance is placed on Annexure-K order dated 01.03.2014 passed by this Court in W.P.Nos.991-992/2015, wherein in respect of the same layout, as regards Sy. No.31/8 measuring 2 acres of Kothanur village acquired under the same notification, this Court by referring to the order passed in batch of writ petitions bearing W.P.Nos.28101-108/2010 and connected cases disposed of on 27.07.2011, has declared the acquisition proceedings as having been lapsed as per Section 27 of the BDA Act in so far as petitioners lands therein were concerned. Petitioners have therefore sought for similar relief.
5. BDA has filed statement of objections. It has urged that writ petition is liable to be dismissed on the ground of delay and laches and also due to suppression of material facts. It is urged by Mr. K.Krishna, learned Counsel appearing for the BDA that petitioners had earlier filed W.P.No.5094/1996 challenging the preliminary notification and final notification. Final notification was quashed as regards the petitioners therein, with liberty to the BDA to proceed with the acquisition proceedings after considering the objections of the petitioners. Thereafter, another Final notification dated 17.09.1997 was issued. Award was passed on 31.01.1998, the same was approved on 31.03.1998; notice under 12(2) was issued on 12.02.1998 and possession was taken on 20.04.1998. It is also urged that the purchaser from petitioner no.1 – A.Srinivasa challenged the acquisition in W.P.No.17206/1996 claiming that he had purchased the lands under two agreements of sale. The said writ petition was dismissed. Petitioner had filed another writ petition challenging the final notification dated 17.09.1997. The same was also allowed quashing the final notification in so far as petitioners were concerned reserving liberty to proceed further. Accordingly, another final notification was issued on 07.10.1999; award was passed on 16.05.2008 and the same was approved on 20.05.1998 and possession was taken on 29.05.2008. The said final notification was again challenged in W.P.No.4514/2000 and the same was dismissed on 02.07.2002. Writ appeal filed was also dismissed. The request made by the petitioners for deletion of the land was also rejected by the State Government. In paragraph 9 of the statement of objections, BDA has contended that after taking possession of the land in question, BDA has formed 36 sites measuring 20’ x 30’. Sites were allotted to different allottees, and therefore, question of lapsing of the scheme did not arise. It is also contended that as the allottees have not been made parties, the writ petition is liable to be dismissed.
6. Learned Counsel appearing for the BDA has placed reliance on the judgment in the case of RAM CHAND & OTHERS VS UNION OF INDIA & OTHERS – (1994)1 SCC 44, to contend that if there is delay in paying compensation, additional interest could be awarded for the delayed period. Reliance is also placed on the judgment in the case of KRISHNAMURTHY VS BANGALORE DEVELOPMENT AUTHORITY – ILR 1996 KAR 1258, to urge that Section 27 of the BDA Act has no application to the facts of the case as there is nothing to show that there was failure on the part of the BDA to execute the scheme due to dereliction of his statutory duties.
7. In the light of the various contentions urged after hearing the matter at length, vide order dated 28.07.2017, this Court passed a detailed order thereby directing the BDA to place the details regarding taking over of the actual possession of the land, number of sites formed, persons to whom they were allotted, the extent of land that has remained undeveloped without forming any sites or layout. Pursuant to the same, BDA has filed an affidavit dated 27.07.2017 of the Executive Engineer of the BDA one Sri P.D.Kumar. He has stated that out of 2 acres 9 guntas including 1 gunta kharab, BDA has formed layout except to an extent of 1 acre 15.87 guntas of land. BDA has also enclosed a map in this connection. It is also stated that a portion of the land measuring 4.84 guntas out of the vacant land is a built-up area.
8. It is thus clear that contrary to the assertions made in the statement of objections by the BDA stating that possession of the entire land has been taken over and layout has been formed, admittedly BDA has not taken over possession of 1 acre 15.87 guntas of land, part of which has been developed by the land owners by putting up construction. Even after the dismissal of the writ petitions filed by the petitioner challenging the acquisition, BDA has not paid compensation to the petitioners and has not taken over possession of the entire land. Though BDA asserts that award was passed on 16.05.2008 and the same has been approved on 20.05.2008, it has neither paid nor tendered the compensation amount, but has proceeded to utilize portion of the land for forming layout and has indeed distributed sites formed therein in favour of some of the allottees. The compensation payable to the land owner has not been deposited before the Civil court also, if indeed there has been any doubt regarding the entitlement of the petitioner. It is well established that the land owner cannot be deprived of his land without paying compensation to him. BDA has not produced any material to show that compensation amount was offered or tendered to the land owner and on his refusal, or due to dispute regarding entitlement, the matter was referred to the Civil Court under Section 30 or 30(1) of Land Acquisition Act. There is no justification for the BDA to keep the amount in its own deposit while utilizing the portion of the land. It is also very relevant to notice here that as regards the unutilized portion of the land there is absolutely no justification for the BDA to contend that it can now utilize the land by paying compensation at the rate it obtained on 23.08.1988 when the preliminary notification was issued. Such a contention cannot be countenanced in the wake of the provisions contained under Articles 300A and 31A of the Constitution. Therefore, what emerges is, in respect of the unutilized portion of the land measuring 1 acre 15.87 guntas, is concerned, where the BDA has not formed any layout, and in a portion whereof constructions have come up by the petitioner, it has to be stated that the BDA has not exercised its powers within a reasonable period to complete the acquisition proceedings. Unless the BDA pays compensation to the land loser and takes over the land, the land does not vest in the BDA as is apparent from Section 36 of the BDA Act read with Section 16 of the Land Acquisition Act.
9. It has been well established by a catena of decisions of the Apex Court that where an authority is vested with a power, it has to exercise the power in a reasonable manner, that reasonable exercise of power includes exercise of power within a reasonable period. If the power is not exercised within a reasonable period for completing the acquisition, the acquisition proceedings would stand lapsed. Therefore, in respect of the vacant land in respect whereof BDA has not formed any layout by taking over possession and by paying compensation, the acquisition proceedings stand lapsed as having been abandoned.
10. However, as regards the remaining portion of land which has been taken over by the BDA utilized for formation of sites and indeed allotted in favour of third parties, question of lapsing of acquisition does not arise. Petitioners would be entitled for payment of compensation with regard to the said portion of the land. As the petitioners have repeatedly resorted to lay challenge to the acquisition proceedings and though they have succeeded on several occasions in their challenge and last of the challenge laid by them was dismissed by this Court on 02.07.2002 which was confirmed in W.A.No.5306/2002 dismissed on 12.09.2003 and the acquisition proceedings even as per the stand taken by the BDA in paragraph 10 of the statement of objections attained finality due to dismissal of the writ appeal on 12.09.2003, and as there is no explanation forthcoming as to why the BDA did not pay the compensation, atleast after the date of dismissal of the writ appeal, I am of the view that market value of the land acquired has to be determined with effect from the date of dismissal of the writ appeal on 12.09.2003, so that petitioners get realistic compensation for the valuable land lost by them.
11. Reliance placed on the decisions by the learned Counsel for the BDA are not apposite to the facts of the present case and the controversy involved. At any rate, even by keeping the principles laid down in Ram Chand’s case, if the matter is examined, the Court is entitled to grant a modified relief taking into consideration the injury caused to the claimants due to the inaction on the part of the respondents directing the respondents to pay additional amount and be not carried away by the contention of the acquiring body that determination of the market value has to be pegged to the price of the acquired lands to the date of Section 4(1) notification which has happened in the distant past. The facts of the present case would certainly disclose that exercise of power by the BDA in not tendering or paying the compensation and in keeping the same in its own account has to be held as against the spirit of the provisions of the Land Acquisition Act and tends towards arbitrariness on its part. Therefore, proper exercise of discretion in such a situation is to take a pragmatic view keeping in mind the ends of justice. If that is done, the entire acquisition proceedings cannot be declared as lapsed unmindful of the fact that BDA had developed sites and distributed the same to third parties in a portion of the land, whereas the other portion remained undeveloped along with structures on a portion thereof without BDA discharging its duties and utilizing the said land for the purpose of formation of the layout by paying compensation. Hence, the judgment of the Apex Court in Ram Chand’s case indeed provide sufficient guidance for this Court in the facts of the present case to exercise the discretion in the matter and grant appropriate relief.
Therefore, this judgment does not help the contention of the BDA that the writ petitions have to be dismissed on the ground of delay etc. Indeed, useful reference can be made to the judgments of the Apex Court which have great bearing on the matter both as regards the delay on the part of the petitioners in approaching the Court and also regarding the discretion to be exercised in granting appropriate relief where the power has been exercised in an unreasonable and illegal manner which includes failure to exercise power within a reasonable period. Useful reference can be made to the decision in the case of TUKARAM KANA JOSHI & OTHERS VS M.I.D.C. & OTHERS – (2013) 1 SCC 353, in this regard.
12. Accordingly these writ petitions are partly allowed.
The relief sought seeking declaration that the acquisition of land measuring 1 acre 15.87 guntas which has remained a vacant land with construction in respect whereof no layout has been formed by the BDA is declared as lapsed. In respect of the remaining land utilized for formation of sites, road, etc., by the BDA, the declaration sought seeking that the acquisition has stood abandoned or lapsed is dismissed. BDA is directed to pass a fresh award determining compensation taking the market value of the land as it obtained on 12.09.2003 and pay compensation thereof along with all statutory benefits within a period of three months from the date of receipt of a copy of this order.
Sd/- JUDGE KK