IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT W. P. Nos. 43052/2017 & 44048-44049/2017 (LA-BDA) BETWEEN:
M/S SUBADRA TEXTILE PRIVATE LIMITED MAGADI MAIN ROAD, DASARAHALLI BENGALURU 560079 RERPESENTED BY ITS MANAGING DIRECTOR MR V S RAJAGOPAL.
... PETITIONER (BY SRI. D R RAVISHANKAR, ADVOCATE) AND:
1. STATE OF KARNATAKA BY ITS SECRETARY DEPARTMENT OF URBAN DEVELOPMENT M S BUILDINGS BANGALORE 560001.
2. BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD KUMARA PARK WEST BANGALORE 560020 REPTD, BY ITS COMMISSIONER.
3. THE SPECIAL LAND ACQUISTION OFFICER BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD KUMARA PARK WEST BANGALORE 560020.
THE TAHSILDAR BENGALURU NORTH TALUK BENGALURU.
(AMENDED V.C.O. DATED 23.10.2018) ... RESPONDENTS (BY SRI. DILDAR SHIRALLI, HCGP FOR R1& 4;
SRI. I G GACHCHINAMATH, ADVOCATE FOR R2 & 3) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THE PRELIMINARY NOTIFICATION DATED 8.1.1964 PUBLISHED IN MYSORE GAZETTE DATED 6.2.1964 ISSUED UNDER SEC. 16(1) OF CITY OF BANGALORE IMPROVEMENT ACT 1945 VIDE ANNEX-A AND CONSEQUENTLY THE FINAL NOTIFICATION DATED 28.10.1971 ISSUED UNDER SEC. 18(1) OF CITY OF BANGALORE IMPROVEMENT ACT 1945 FOR THE PURPOSE OF FORMATION OF THE LAYOUT CALLED ' WEST OF CHORD ROAD, IV STAGE ' VIDE ANNX-B AS LAPSED AND ABANDONED UNDER SEC. 27 OF BDA ACT IN SO FAR AS PETITION SCHEDULE PROPERTY AND ETC., THESE PETITIONS COMING ON FOR PRELIMINMARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner claiming to be the owner of petition land ad- measuring about 4 acres 22 guntas as of now by virtue of Registered Sale Deeds dated 21.08.1963 at Annexures- C & D has invoked writ jurisdiction of this Court for the quashment of the Preliminary Notification dated 08.01.1964 at Annexure-A and Final Notification dated 28.10.1971 respectively issued u/s.16(1) and u/s.18(1) of the erstwhile City of Bangalore Improvement Trust Act, 1945 to the extent they relate to the lands not comprised in the award dated 20.11.1978.
2. The 1st respondent-State having entered appearance through the learned HCGP Sri Dildar Shiralli has filed the Statement of Objections. The 2nd and 3rd respondents having entered appearance through their Sr. Panel Counsel Sri I.G.Gacchinamath too have filed their separate Statement of Objections. These respondents oppose grant of relief to the petitioner.
3. Learned counsel for the petitioner submits that by virtue of the award dated 20.11.1978 at Annexure-E to the writ petition only 2 acres 11 guntas land in various petition survey numbers was acquired, leaving rest of the notified lands that continue in the possession of the petitioner; even the compensation awarded is also confined to this small piece of land, the remainder being about 9 acres in all; that being so the respondent-BDA is not justified in sitting over petitioner’s application dated 06.06.2017 wherein a ‘No objection Certificate’ is sought for and that in these circumstances petitioner has approached this Court.
4. Learned counsel for the petitioner also submits that regardless of the text of prayer column he would be satisfied if the clog on the title of the petitioner to the petition lands is otherwise removed by an appropriate order coupled with a direction to the respondent-BDA to consider its application for grant of ‘No Objection Certificate’. He also mentions about April 1987 ULC Proceedings permitting him to sell a portion of the land; the grant of BDA Approval dated 03.07.1999 to the conversion of a portion of the petition land. In essence petitioner submits that his constitutional right to property cannot be otherwise meddled with only because the petition lands were notified for acquisition that obviously did not culminate into an award, which is a sine qua non for accomplishment of acquisition of petition lands.
5. Learned HCGP Sri Dildar Shiralli appearing for the State and learned Sr. Panel Counsel appearing for respondent-BDA resist the writ petitions on the ground of delay & laches banking upon a decision of the Apex Court AIR 1992 SC 1414, wherein the challenge to the acquisition laid belatedly has been rejected. They also submit that in view of the acquisition notifications comprising the petition lands no relief can be granted to the petitioner even when the said lands are not included in the award.
6. I have heard the learned counsel for the petitioner and the learned HCGP and the learned Sr.Panel Counsel for the respondents. I have perused the writ petitions and the Statements of Objections that are accompanied by several documents.
7. The first contention of the petitioner that although all the lands in the petition survey numbers ad-measuring totally 11 acres 14 guntas were notified for acquisition, the award having comprised only 2 acres and 13 guntas of land, the rest of the lands continue to be with the petitioner, is substantiated by the undisputed material placed on record as under:
(a) the award dated 20.11.1978 at Annexure-E comprises only 2 acres and 13 guntas and at the bottom of the 1st page it excludes rest of the petition lands, in so many words; no other document partaking the character of an award comprising the rest of the lands is pleaded or produced;
(b) the Government has approved the award only to the extent of 2 acres and 12 guntas and 61 sq. yards in aggregate and sanctioned a compensation of Rs.58,398/- payable to one Mr.Magagi Dhondusa who was apparently the kathedar and his indemnity bond dated 17.04.1979 also describes the same factuals;
(c) the Government vide Order dated 16.04.1987 u/s.20(1) of the U.L.C. Act, 1976 permitted the petitioner a large extent of petition lands not comprised in the award to sell and other land to be retained for industrial and residential purposes of its employees;
(d) the Government vide Order dated 12.05.1988 has granted extension of one year from 16.04.1988 to 15.04.1989 to sell some of the notified lands not included in the Award and that accordingly petitioner has sold about 3 acres by Registered conveyances.
(e) the BDA vide Order dated 04.02.1988 has issued Building Commencement Certificate along with the Approval Plan that comprise the petition lands that are not included in the award in question; and (f) the BDA vide Order dated 03.07.1999 has approved conversion of petition lands stipulating payment of Rs.25,46,683/-, which of course has remained unpaid on the plea of financial difficulty, as averred in the writ petition.
8. It is relevant to mention that even in the Statement of Objections filed by the respondents, it has not been stated as to how the petition lands were acquired without there being an award comprising the same. Under the Scheme of the Land Acquisition Act, 1894, referentially incorporated vide Section 27 of the City of Bangalore Improvement Act, 1945, the acquisition is accomplished only by passing the award preceded by the preliminary and final notifications. The lands comprised in the award are alone stand acquired and the lands though notified which are not included in the award, continue to be of the land owner. In fact, the copy of the award produced by the petitioner at Annexure – E and the one produced by the 1st respondent-State at Annexure – R2 are one and the same. The pleadings taken up by the respondent-BDA in its Statement of Objections are evasive, and border unconscionability.
9. The stand of the respondent- State and the BDA is inconsistent with the undisputed events enumerated in paragraph No.7 (supra), wherein the evidence gallores as to petitioner having been recognized as being the owner of the petition lands. That being so, it was not open to the respondent-BDA to maintain a stony silence qua the application of the petitioner for grant of ‘No Objection Certificate’. Nothing prevented the BDA as an instrumentality of the State from responding to the petitioner’s claim this way or that way. There is no justification whatsoever to the callous attitude of the respondent-BDA .
10. The petitioner is more than justified in invoking his constitutional right to property guaranteed under Article 300-A of the Constitution of India, though it has ceased to be a Fundamental Right. The Apex Court in the case of NIRANJANLALL AGARWALLA vs. UNION OF INDIA –AIR 1969 SC 23, has observed as under:
“It does not behove the State to contest a good claim on the off-chance of success on some unsubstantiated technical plea”.
The reliance by the respondent-BDA on the decision of the Apex Court in Bhoop Singh’s case supra, is misconceived in as much as there is no acquisition of petition lands at all whereas, in the said Ruling, the challenge was to the acquisition of the lands. Thus, the facts of present case are miles away from that of Bhoop Singh’s case.
11. Regardless of the text of prayer in the writ petitions, relief cannot be denied to the petitioner when he has a constitutionally protected right to the property in question.
12. In the above circumstances, these writ petitions succeeds in part; the clog on petitioner’s title to the property by virtue of the subject acquisition notifications stands abated; a Writ of Mandamus issues to the respondents 2 & 3 to consider petitioner’s application for the grant of NOC in respect of petition land ( excluding those in the award) within a period of four months after hearing the petitioner.
It is needless to mention that, liberty is left to respondents 2 & 3 to solicit from the petitioner any information or document as are required for the due consideration of petitioner’s application subject to the rider that no delay shall be brooked in the guise of such solicitation.
Costs made easy.
Sd/- JUDGE Snb/