IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NOS.1627/2013 & 2892-2894/2013 (LA-BDA) BETWEEN M/S. VENUS CONCRETE PRODUCTS 18TH CROSS, RAJIV GANDHI NAGAR SY.NO.52/1, BEHIND KTC GODOWN RAJIV GANDHI NAGAR, H.S.R. LAYOUT 7TH SECTOR, BANGALORE-560 102 REPRESENTED AND OWNED BY ITS PROPRIETORS AND LAND OWNERS 1 . SRI K VENKATESH AGED ABOUT 40 YEARS R/AT NO.160, MATHRUSHRI LAYOUT S R NAIDU LAYOUT D C HALLI MAIN ROAD BANGALORE-560 068 2. SMT. MOHINAMMA W/O KANNAIAH NAIDU SINCE DECEASED, HIS LRS SRI K VENKATESH SON AND PETITIONER NO.1 HEREIN R/AT THE ABOVE MENTIONED ADDRESS 3 . SRI A PRABHAKAR AGED ABOUT 53 YEARS S/O A KONDAMA NAIDU R/AT NO.4, 2ND CROSS SUNKAL FARM LAYOUT ADUGODI POST BANGALORE-560 030 4. M/S.VENKATESHWARA FABRICATORS 18TH CROSS, RAJIV GANDHI NAGAR SY.NO.52/1, BEHIND KTC GO-DOWN H.S.R. LAYOUT, 6TH SECTOR BANGALORE-560 102 REPRESENTED BY:
SRI K VENKATESH AGED ABOUT 48 YEARS S/O LATE V KRISHNAPPA R/AT NO.6, RAJIV GANDHI NAGAR SY.NO.52/1, BANGALORE-560 068 …APPELLANTS (BY SRI AJIT KALYAN, ADVOCATE) AND 1 . THE STATE OF KARNATAKA REP BY ITS SECRETARY HOUSING DEPARTMENT M S BUILDING, BANGALORE-560001 2 . THE COMMISSIONER THE BANGALORE DEVELOPMENT AUTHORITY KUMARA PARK WEST, BANGALORE-560 020 3 . THE SPECIAL LAND ACQUISITION OFFICER THE BANGALORE DEVELOPMENT AUTHORITY KUMARA PARK WEST, BANGALORE-560 020 4 . THE EXECUTIVE ENGINEER BDA COMPLEX, HSR LAYOUT BANGALORE-560 102 …RESPONDENTS (BY SRI I THARANATH POOJARY, AGA FOR R-1;
SRI I G GACHCHINAMATH, ADVOCATE FOR R-2, 3 & 4) 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 W.P.NOS.4877-4880/2012 DATED 30.01.2013 INSOFAR AS PORTION OF ORDER PARA ‘8’.
THESE WRIT APPEALS COMING ON FOR FINAL HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT By these appeals, the appellants have taken an exception to the order dated 30th January 2013 passed by the learned Single Judge.
2. The land subject matter of the appeals and the writ petitions measures 0.34 guntas in Sy.No.52/1 of Bommanahalli Village, Begur Hobli, Bengaluru South Taluk. The case made out by the appellants is that the original owner of the said land sold the same to one Ramachandra Gurappa Tambre on 19th August 1963. It is pointed out that a preliminary notification dated 15th December 1984 was issued under sub-section (1) read with sub- section (3) of Section 17 of the Bangalore Development Authority Act, 1976 (for short ‘the BDA Act’). By the said notification, the Bangalore Development Authority (for short ‘BDA’) notified that a scheme has been made for formation of a layout mentioned in the said notification. The final notification was issued on 28th November 1986. Under the final notification, the Special Additional Land Acquisition Officer, BDA was appointed to perform the functions of the Deputy Commissioner under the Land Acquisition Act, 1894. On the basis of the General Power of Attorney executed by the said Ramachandra Gurappa Tambre on 6th May 1991 in favour of one S.V.Pathy, a sale deed was executed by the said constituted attorney on 20th May 1992 in favour of the father of the fourth appellant. Thereafter, the General Power of Attorney executed absolute sale deeds in favour of the first, second and third appellants on 4th December 1992. It is claimed that the father of the fourth appellant had executed a gift deed in favour of the original second petitioner.
3. On 25th July 2011, a show cause notice was issued under Section 33 of the BDA Act. The appellants replied to the said notice. The endorsement/notice dated 21st January 2012 was issued to the advocate for the appellants alleging that their possession was unauthorised. In the writ petitions filed by the appellants, the first prayer was for quashing the preliminary notification and the final notification as well as a declaration that the scheme has lapsed under Section 27 of the BDA Act. There was also a challenge to the notice dated 21st January 2012. The learned Single Judge observed that BDA has taken over possession on 20th February 1989 and as the appellants had purchased the subject land in the year 1991, they were not entitled to challenge the validity of the acquisition notifications. The learned Single Judge, however, observed that the show cause notice issued under Section 33 of the BDA Act followed by the order dated 21st January 2012 are without jurisdiction. The learned Single Judge, after perusing the notice, came to the conclusion that the allegations made therein do not fall within the ambit of Section 32 or Section 33 of the BDA Act. Therefore, the order dated 21st January 2012 was quashed by the learned Single Judge while rejecting the other prayers. Liberty was granted to BDA to initiate action under the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974.
4. The learned counsel appearing for the appellants relied upon the judgment and order dated 20th November 2012 passed by a learned Single Judge of this Court in W.P.No.32456/2011 and connected cases in respect of a part of the land covered by the same notifications which is not a part of these appeals. He submitted that in the said case, the notifications were quashed by the learned Single Judge. He invited our attention to sub-section (5) of Section 17 of the BDA Act. He submitted that in the present case, there is a breach of sub- section (5) of Section 17 as the notice was not served to the immediate predecessor-in-title of the appellants. He submitted that the learned Single Judge could not have refused to consider the arguments based on Section 27 of the BDA Act only on the ground that the appellants were the subsequent purchasers. He relied upon a decision of the Apex Court in the case of GOVERNMENT (NCT OF DELHI) vs MANAV DHARAM TRUST
AND ANOTHER1. He submitted that there is no material placed on record to show that possession of the land subject matter of these appeals was taken and there was no objection filed by the respondents to the writ petition before the learned Single Judge. He would submit that the documents relied upon in support of the contention that possession was taken over do not bear the signatures of the person who was claiming to be the owner at the relevant time. He would, therefore, submit that this is a case where Section 27 will squarely apply and therefore, in addition to the relief already granted, the learned Single Judge ought to have granted prayer clause (a) as well. The learned counsel appearing for the second to fourth respondents supported the impugned order.
1 (2017) 6 SCC 751 5. We have given careful consideration to the submissions.
As noted earlier, the final notification was issued on 28th November 1986. Long time after the final notification was issued, the then owner Ramachandra Gurappa Tambre executed a General Power of Attorney in favour of one Sri S.V.Pathy. It is only on the basis of the said General Power of Attorney, sale deeds were executed by the General Power of Attorney on 20th May 1992 and on 4th December 1992 in favour of the appellants. The father of the fourth appellant executed a gift deed in his favour. Thus, there is a transfer of the property by the predecessor-in-title of the appellants in their favour long after the final notification. As narrated earlier, the Power of Attorney was executed after the final notification.
6. At this stage, we may refer to Section 4 of the Karnataka Land (Restriction on Transfer) Act, 1991 which reads thus:
“4. Regulation of transfer of lands in relation to which acquisition proceedings have been initiated.- No person shall, except with previous permission in writing of the competent authority, transfer, or purport to transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in any urban area which is proposed to be acquired in connection with the Scheme in relation to which the declaration has been published under Section 19 of the Bangalore Development Authority Act, 1976 or section 19 of the Karnataka Urban Development Authorities Act, 1987.”
7. We must note here that nothing is placed on record whether such previous permission of the competent authority was obtained.
8. Now coming to the documents at Annexures-G and H as well as J, the same record that on 28th November 1988, the possession of the subject land was taken over. Annexure-H is the possession report signed by the BDA. The genuineness of these documents is not disputed. The first sale deed was executed nearly 3½ years after the documents recording taking over possession by the State Government. As noted earlier, the second sale deed was executed on 4th December 1992. The sale deeds have been executed by the constituted attorney of the person claiming to be in possession. At this stage, a reference will have to be made to the averments in the writ petitions and in particular, paragraph 6 thereof wherein there is a reference to taking over possession by drawing spot mahazar. No doubt in paragraph 24, it is claimed that the petitioners are in continuous possession and enjoyment of the schedule property. The genuineness of the said documents is not disputed. In fact, the appellants have produced the said documents. As noted earlier, the appellants have come into picture much later. The predecessor-in-title of the appellants has not chosen to challenge the action of taking over possession. Therefore, we have to proceed on the footing that the possession of the subject property was taken over. Thus, the sale deeds were executed in favour of the appellants in the year 1992 by a person having no title at all.
9. Without going into the question whether the appellants could have acquired the subject land, considering the aforesaid aspects, the question of considering the applicability of Section 27 will not arise.
10. We are not on the locus of the appellants. As noted earlier, the appellants’ predecessor-in-title had made no grievance about taking over possession. Therefore, no fault can be found with the impugned order passed by the learned Single Judge when he has declined to consider the plea under Section 27 of the BDA Act on a different ground. The final conclusion drawn by the learned Single Judge cannot be disturbed. In any case, as far as the notice issued under Section 33 of BDA Act is concerned, the learned Single Judge has granted a relief by quashing the notice and the order is passed on the basis of the said notice.
11. Hence, there is no reason to interfere in the impugned judgment and order. The appeals are accordingly dismissed.
The pending interlocutory application does not survive and is accordingly disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE bkv