in the high court of karnataka at bangalore dated...
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14Th
DAY OF FEBRUARY 2014
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos. 12962-12970 OF 2012 (LA-BDA)
BETWEEN:
1. Smt. Neelam Bashir,
Aged about 55 years,
Wife of H. Bashir,
2. Sri. Yasin Bashir,
Aged about 44 years,
Son of H. Bashir,
3. Sri. Gaffar Eqbal,
Aged about 44 years,
Son of Sri. H. Eqbal,
4. Sri. Hameed Eqbal,
Aged about 42 years,
Son of Sri. H. Eqbal,
5. Sri. Avesh Eqbal,
Aged about 38 years,
Son of H. Eqbal,
6. Sri. H. Rafiq,
Aged about 62 years,
Son of Late H. Habib,
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7. Smt. Saidabee,
Aged about 54 years,
Wife of Sri. H. Rafiq,
8. Sri. H. Salay Mohammed,
Aged about 54 years,
Son of Late H. Habib,
9. Smt. Imroza Salay Mohammed,
Aged about 43 years,
Wife of Sri. H. Salay Mohammed,
Petitioners No. 1 to 9 are
Residing at No.23, ‘A’ Cross,
Austin Town,
Bangalore – 560047.
All the petitioners 1 and 2 and 4 to 9
Are represented by their
Power of Attorney Holder/
3rd
petitioner, Sri. Gaffar Eqbal,
Aged about 44 years,
Son of Sri. H.Eqbal,
Residing at No.9,
C. Layout,
Bannimantap,
Mysore.
…PETITIONERS
(By Shri. K. Suman, Advocate )
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AND:
1. The Secretary,
Urban Development Department,
M.S.Building,
Dr. Ambedkar Veedhi,
Bangalore – 560 001.
2. The Bangalore Development Authority,
T. Chowdaiah Road,
Kumara Park West,
Bangalore – 560 020,
By its Secretary.
3. The Commissioner,
Bangalore Development Authority,
T. Chowdaiah Road,
Kumara Park West,
Bangalore – 560 020.
4. The Deputy Commissioner,
Bangalore Development Authority,
T. Chowdaiah Road,
Kumara Park West,
Bangalore – 560 020.
5. The Special Land Acquisition Officer,
Bangalore Development Authority,
T. Chowdaiah Road,
Kumara Park West,
Bangalore – 560 020.
…RESPONDENTS
(By Shri. D. Nagaraj, Additional Government Advocate for
Respondent No.1
Shri. C.R. Gopalaswamy, Advocate for Respondent Nos. 2 to 5)
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These Writ Petitions filed under Articles 226 and 227 of the
Constitution of India, praying to declare that the acquisition
proceedings in respect of the lands of the petitioners in Sy.No.250,
re-survey No.250/1, situated at Halage Voderahali Village,
Kengeri Hobli, Bangalore South Taluk, measuring 2 acres 24
guntas, including 5 guntas kharab, under preliminary notification
dated nil as published in the Karnataka Gazette dated 6.4.1989,
i.e., Annexure-A, as illegal and void ab-initio and etc;
These petitions, having been heard and reserved on
05.02.2014 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
O R D E R
The petitioners claim to be absolute owners of lands bearing
Survey No.250, Re-survey no.250/1 of Halage village, Kengeri
Hobli, Bangalore South Taluk, measuring 2 acres 24 guntas,
including 5 guntas kharab. It is claimed that one Bashir, the
husband of the first petitioner and the father of the second
petitioner had purchased the property under a Sale deed dated
8.2.1989. It is claimed that there was a partition in the family, and
the said property also came to be shared by family members of the
husband of the first petitioner, namely, petitioners 3,4, 5, 6,7 and
8.
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It is stated that the lands however, came to be notified for
acquisition for the formation of the Banashankari V Stage layout,
under the provisions of the Bangalore Development Authority
Act, 1976 (Hereinafter referred to as the ‘BDA Act’, for brevity)
vide notification dated 6.4.1989. It is stated that though the name
of Bashir, the husband of the petitioner no.1 was shown as the
owner in the revenue records at the time of the notification, his
name was not to be found in the notification, as against the lands
proposed to be acquired. It is thereafter a final notification dated
9.5.1994 is said to have been issued.
The petitioners claim that as they remained unaware of the
acquisition proceedings, they had put up several structures on the
land in question during the year 1995-96. The structures which
continued to exist till the same were demolished by the BDA, as
stated hereinafter, are said to be as follows :
(a) Residential house with RCC roofing measuring
30’x40’
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(b) ACC Sheet houses – 5 Nos. each measuring 10’ x 10’,
10’ x 10’, 10’ x 12’, 12’ x 10’ and 15’ x 40’.
(c) RCC residential house 10’x 10’ – 1 No.
(d) 1 Shop with RCC roofing measuring 12’ x 60’
(e) Another property measuring 40 ‘ x 60’ earmarked with
a compound wall comprises of a house measuring 30’ x 25’ with
RCC roofing.
(f) Car Garage measuring 12’ x 12’
(g) Pump House with Borewell – 1.
It is claimed that it was only in the year 1997 that, after
learning about the acquisition, that the said Bashir, along with the
petitioners, had filed a writ petition, in WP 7743/1997, before this
court – questioning the acquisition proceedings. The same is said
to have been dismissed by an order dated 27.2.1998. As against
the said order, an appeal is said to have been filed in WA
5061/1998. The said appeal is stated to have been disposed of
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summarily in terms of a judgment in WA 4928-4950/1998, dated
24.3.1999.
It is stated that by virtue of the said judgment, the BDA was
required to consider the objections filed by various land owners
afresh and was required to decide on whether a modified Scheme
was required to be sent to the government, notwithstanding the
final notification.
It is claimed that in view of several other orders passed in
other writ petitions of land owners, the BDA had, after
considering representations made by several land owners, a fresh
final notification dated 16.9.1997 came to be issued. It is
contended that the lands of the petitioners did not find place in the
said notification.
Pursuant to the judgment in WA 4950/1998, the
government is said to have issued yet another final notification
dated 7.10.1999. Even this notification, it is claimed, did not
include the lands of the petitioners.
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However, in the year 2006, the BDA is said to have forcibly
demolished the structures aforesaid on the lands, on the pretext
that the acquisition proceedings had attained finality and that the
State had taken possession of the lands much earlier, and that the
petitioners were trespassers. It is however, the case of the
petitioners that the petitioners had never been issued any notice of
any proceedings and the purported documents, on the basis of
which, possession is said to have been taken, are invalid and
cannot sustain the claim of lawful proceedings having been taken
in respect of the acquisition.
It is further stated that land bearing Survey no.251, of
Halage Voderahalli, which is adjacent to the lands of the
petitioner, is said to have been the subject matter of a notification
under Section 48(1) of the Land Acquisition Act, 1894, whereby
the State has withdrawn from the acquisition proceedings, vide
notification dated 12.1.2010. The State Government, however,
having withdrawn that notification by a further notification dated
4.11.2011, the land owners are said to have challenged the same,
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by way of writ petitions in WP 42797- 42799/2011. The said writ
petitions are said to have been allowed and the notification under
Section 48(1) of the LA Act is said to have been upheld.
It is contended that it is evident that as far as the lands of
the petitioners are concerned, the passing of the award or the
drawing up of such illegal and hollow mahazars by the Revenue
Inspector, without the authority of law, is a farce and that BDA
has not taken possession of the property, much less implemented
the Scheme insofar as the lands of the petitioners are concerned.
To the knowledge of the petitioners, it is claimed that the award
amount has not been deposited in the Civil Court nor any
compensation amount disbursed to anybody by the BDA in
respect of the acquisition of the lands of the petitioners’ property.
It is contended that the de-notification has been done by the
BDA to an extent of more than 250 acres, against a total extent of
1851 acres 39 guntas sought to be acquired under the preliminary
notification dated 29.12.1988 and published in the Gazette on
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16.4.1989. The first final notification dated 09.05.1984, gazetted
on 18.05.1994 was only in respect of 1458 acres 21 guntas for the
formation of Banashankari V Stage Layout, which was quashed
by this Court and the acquisition ultimately has been diluted to
only an extent of about 784 acres totally as per the final
notification dated 16.09.1997. Thereafter, even this final
notification has been further modified and the acquisition has been
further reduced under the third final notification dated 07.10.1999.
From out of this, even according to the BDA, they are said to have
taken possession only to an extent of 400 acres 15 guntas and
from out of this, 213 acres and 2.5 guntas have been de-notified.
In response to a query raised by the petitioners under the Right to
Information Act,2005, it is admitted that 213 acres and 2.5 guntas
have been de-notified. It is hence contended that it is ex-facie
evident that there is no implementation of the Scheme much less
substantial implementation of the Scheme, be it as mooted in the
original scheme formulated by the Government or under the
subsequent scheme said to have been accorded administrative
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approval on 12.03.1987. Either way, the lands of the petitioners
are not included in that final notification. If that were to be so, the
question of the lands of the petitioners being included in any
approved Scheme of the BDA does not arise. However, the
petitioners have been threatened time and again by the BDA by
making it appear as if, the lands of the petitioners were already
acquired under the final notification dated 9.5.1984.
It is contended that in so far as the petitioners’ lands are
concerned, after the BDA had illegally demolished the structures
on the lands, had sought to auction the lands, which was
questioned by the petitioners in a writ petition in WP 2824/2007,
it is said that there was an interim order of stay granted therein,
restraining BDA from auctioning the property. The BDA is then
said to have filed a memo that it would not pursue the acquisition
proceedings, in the said petition. In the wake of which, the
petition was said to have been dismissed as not surviving for
consideration. The petitioners were, therefore, said to have been
reassured that there would be no further interference by the BDA
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in respect of the lands. However, in March 2012, the petitioners,
who are said to be residents of Mysore, had on a casual visit to the
lands, noticed hectic activity on the lands by the BDA and its men,
proposing to commence certain construction activity, it is that
circumstance, which has prompted the petitioners to file the
present petition.
3. The learned counsel for the petitioners would contend
that the lands of the petitioners do not form the subject matter of
the second final notification dated 16.9.1997 or the third final
notification dated 7.10.1999. The lands of the petitioners have
evidently not been acquired by the BDA or Government. In this
view of the matter, the action of the BDA in attempting to put up
construction illegally in the lands of the petitioners or their earlier
attempts to auction the property, are illegal and without the
authority of law.
It is further contended that a Division Bench of this Court in
W.A.No.5091/1998 dated 28.07.1999, has disposed of the writ
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appeal filed by the petitioners and Bashir as per the judgment in
W.A.No.4928-4950/1988 and the acquisition relating to the lands
of the petitioners vide final notification dated 9.5.1994 has been
quashed on the ground that the objections or representation given
by the petitioners are not properly considered by the BDA. This
aspect is emphatically admitted by the Government and the BDA
in the final notification dated 07.10.1999, which reads as under:
“Final Notification
The Preliminary Notification vide
No.BDA/SLAO/A1/324/88-89 dated: 29.12.88 for
formation of the layout called “Banashankari V Stage
Layout” was published in the Karnataka Gazette dated
8.4.1989 in (Page 305 to 328 Part III). Government
have sanctioned the scheme U/S.18(3) of Bangalore
Development Act 1976 vide Government Order
No.UDD 434 MNX 97 dated 12.9.1997 for the
formation of Banashankari V Stage Layout.
The Hon’ble High Court in its Order dated
31.8.1998 in Writ Petition No.33717-18/97 etc and in
order dated 24.3.99 passed in W.A.No.4928-50/1998
etc., have quashed some lands notified vide Final
Notification No.HUD 127 MNX 94 dated 9.5.1994 and
F.N.No.UD 436 MNX 97, dated 17.9.1997 on the
ground that the objections/representations are not
properly considered by the Bangalore Development
Authority and reserved the liberty to Government to
issues fresh declaration after considering the objections
filed by the Writ Petitioners. Further the Hon’ble High
Court has directed to modify the scheme if necessary.
These aspects have been examined and considered and
decided to issue fresh declaration for the lands
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mentioned in the schedule. Further it was decided that
there is no necessity to introduce any modification to
the scheme already sanctioned by the Government vide
No.UDD 434 MNX 97 dated 12.9.1997.
Now, therefore, in exercise of the powers
conferred under Sub-Section (1) of Section 19 of the
Bangalore Development Authority Act 1976
(Karnataka Act No.12 of 1976). The Government of
Karnataka hereby declares that the lands notified in the
schedule noted below be the same a little more or less
are needed for public purpose i.e. for the formation of
layout called “Banashankari V Stage” and in exercise of
the power conferred by Clause (c) of Section 3 and
Section 7 of the Land Acquisition Act 1894 (Central
Act-1, of 1894) as amended and extended from time to
time by the Land Acquisition (Karnataka Extension and
Amendment) Act 1961 (Karnataka Act 17 of 1961) read
with Section 36 of B.D.A.Act 1976 the Special Land
Acquisition Officer of the Bangalore Development
Authority, Bangalore, is hereby appointed to perform
the function of the Deputy Commissioner under the
Land Acquisition Act and directed to take order for
acquisition of lands.
A plan of the lands is kept in the office of the
Special Land Acquisition Officer, B.D.A., Bangalore
for information.”
It is contended that the petitioners have drawn attention to
the contents of the above final notification dated 7.10.1999, only
to point out to this Court that the BDA has specifically admitted
that the final notification, has been quashed as per the order
passed in W.A.No.4928-50/1998 and that they have re-examined,
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considered and decided the issue afresh and thereafter they have
proposed to re-acquire the said lands as notified in the present
final notification which, prominently, did not include the lands of
the petitioners. Therefore, when the acquisition relating to the
lands of the petitioners under the final notification dated 9.5.1994
has been quashed and when the lands of the petitioners do not
form the subject matter of the final notification dated 7.10.1999
issued by the Government or the BDA in pursuance of the
direction of this Court in W.A.5061/1998 dated 28.07.1999, it
follows as a necessary corollary that the lands of the petitioners
have not been acquired and therefore, the action of the BDA is
grossly without the authority of law and jurisdiction and they do
not have a semblance of a right to the petition schedule property.
It is further contended that in so far as the petitioners’ land
is concerned, possession has not been taken over by the BDA
much less legally or lawfully by drawing up a proper Mahazar on
the spot and physically taking possession. That apart, there is no
notification issued under Section 16(2) of the Land Acquisition
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Act, 1894. The Mahazar, if any, sought to be drawn, is by a
Revenue Inspector and obviously, as has been the routine, some
strange signatures said to be those of villagers, without any
particulars, would be vaguely found in any such Mahazar prepared
in the office of the BDA, to falsely claim that BDA has taken
possession. Moreover, when the lands of the petitioners do not
form the subject matter of any final notification legally or
factually, the question of the BDA passing any award or claiming
that they have taken possession of the said lands, does not arise.
It is contended that when the BDA has done nothing in the
matter nor have they prepared a plan for formation of sites or
otherwise in relation to the land of the petitioners within a period
of 5 years from the date of final declaration, the BDA could not
have taken possession of the land and that either way, the
acquisition proceedings have lapsed automatically on account of
the abandonment of the Scheme for more than a decade by the
BDA in respect of the land of the petitioner. The BDA has failed
to exercise its right over the land. The right of the petitioners
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revive. This valuable statutory right of the petitioners cannot be
trampled upon by the respondents. The acquisition proceedings in
respect of the land of the petitioners require to be accordingly
declared as having been lapsed or abandoned.
It is hence claimed that the petition be allowed as prayed
for.
4. Per contra, it is contended on behalf of the BDA that as
on the date of Preliminary Notification, the land in Survey No.250
of Halagevaderahalli Village stood in the names of Shri.
T.M.Chandrashekhar, Smt. T. Meenakshamma and
Smt.Janakamma, respectively, as per the revenue records.
Therefore, it is up to the petitioners to establish their right over the
property.
It is pointed out that the petitioners claiming under one
Bashir, have stated that the lands were said to have been
purchased on 8.2.1989, where as the Preliminary notification was
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issued on 6.4.1989. Hence, it was evident that the records did not
reflect the name of Bashir as the owner of the lands.
It is further contended that the earliest petition filed by the
petitioners, in WP 7743/1997 having been dismissed on
27.2.1998, the petitioners are precluded from raising the same
grounds in the present petition. In so far as the petitioners seeking
to draw sustenance from the fact that the Writ Appeals filed by the
petitioners were disposed of in WA 4928-50/1998, would have no
bearing in so far as the petitioners were concerned, for the simple
reason that there was no representation pending consideration with
the BDA, as was the case in respect of the appellants in WA 4928-
50/1998, nor was any representation made by the petitioners
subsequently to be considered. On the other hand, the judgment
in the petitioners’ appeal was merely an order of dismissal,
affirming the order of dismissal in the petition.
It is further contended that the claim of the petitioners that a
fresh final notification was issued in respect of the entire lands
proposed for acquisition is incorrect. The correct position is that
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some of the land owners having challenged the acquisition
proceedings, their petitions had been allowed, requiring the
respondents to re-do the proceedings by issuing a fresh
notification, only in so far as their lands were concerned.
Accordingly, the BDA is said to have given opportunity to
particular land owners to submit their representations and after
consideration, the said representations were rejected. Thereafter,
the BDA is said to have issued fresh final notification after
obtaining proper sanction so far as it relates to particular land
only. Therefore, the contention of the petitioners that their lands
are not included in the Final Notification is misleading and
misconceived.
The allegations as regards possession of the lands not
having been taken etc., are denied and it is highlighted that even
according to the petitioners the BDA had demolished the
structures on the property in the year 2006 itself. It is hence
inexplicable that the petitioners have thought it fit to approach this
court only by recourse to this petition in the year 2012.
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It is claimed that it is proposed by the BDA to construct a
Affordable Housing for Economically Weaker Sections (E.W.S.)
and commercial block at Halagevaderahalli in Survey No.250. It
is claimed that tenders were invited and the construction was said
to have been entrusted to one M/s. Gowri Infra Engineers Private
Limited and in this regard, an agreement was also entered into on
9.11.2011. As per the accepted tender, the cost of the construction
is Rs.27.91 crore. In this regard, a work order was issued to the
contractors. It is claimed that construction work has progressed
substantially. Though by virtue of the interim order of status quo
passed by this Court, the construction work had been stalled. It is
however contended that by virtue of the interim order having been
vacated, permitting the BDA to proceed with the construction
work, the proposed quarters have been fully constructed and are
ready for occupation. It is hence contended that the petition be
dismissed.
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5. By way of reply, the learned counsel for the petitioner
would reiterate that the possession of the land was never taken in
accordance with the law. On the other hand the BDA has
admittedly abandoned the implementation of the Scheme as
originally envisaged in the formation of the layout. The large
extent of land sought to be acquired was whittled down to the
extent of the petitioners lands only. It is therefore claimed that the
BDA has failed to substantially implement the Scheme and hence
the rigour of Section 27 is attracted and the Scheme lapses.
It is also contended that even assuming possession was
taken and in furtherance of the acquisition, construction has been
made of certain quarters, it would be for the BDA to demonstrate
whether the construction of quarters for the economically weaker
section of society was envisaged in the Scheme pursuant to which
the acquisition was initiated. If it was not, it is for the BDA to
then satisfy this court that the modification of the Scheme was in
accordance with Section 19 of the BDA Act. As no material is
produced to substantiate that the change in its plans was in
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accordance with law – the utilization of the lands of the petitioner
is rendered illegal and void. It is also pointed out that the interim
order restraining the BDA from putting up construction was
vacated and the BDA was permitted to proceed with the
construction at its peril. It is hence not open to the BDA to plead
equity on the ground that it has now completed the construction of
buildings on the petitioners’ lands and hence should be regularized
even if the same is illegal and unauthorized.
It is hence contended that the petition be allowed as prayed
for.
6. From the above facts and circumstances, it would not be
necessary to address the several contentions raised by the parties.
As the petition is liable to be disposed of on a glaring
circumstance pointed out by the petitioner. It is not in dispute that
the acquisition proceedings were initiated pursuant to a Scheme
for the formation of the Banashankari V Stage Layout. There is
no assertion on behalf of the respondents that the same has been
implemented. It is however stated that the land of the petitioners
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has been utilised for the construction of Quarters for the
Economically Weaker Section of Society, consisting of multi-
storeyed blocks of buildings. This is not claimed to be part of the
Scheme for formation of the Banashankari V Stage Layout or an
improvement thereof. It is apparently an entirely independent
project implemented over land purportedly acquired under the
aforesaid Scheme.
Assuming that the Scheme pertaining to Banashankari V
Stage Layout was duly sanctioned – Section 19 of the BDA Act
would permit alteration of the Scheme if an improvement could be
made in any part of the Scheme. However, the present situation
would indicate that the BDA has utilised the land for an entirely
independent project, while restricting the acquisition to the extent
of the petitioners’ lands. This would be wholly without authority
of law. Viewed from that point of view, the acquisition
proceedings stand vitiated. Delay and laches are not relevant
having regard to the changed circumstances.
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It is also to be seen that the BDA has plunged ahead with
the project and erected building even during the pendency of this
petition – unconscious of its folly or may be even brash
indifference as to the consequences if any. As any consequent
loss is borne by the public exchequer.
It is not in doubt that the petitions, however, would succeed
in the light of the above infirmity and are accordingly allowed.
The acquisition proceedings in so far as the petitioners’ lands in
terms of the impugned annexures are concerned, are quashed.
The respondents are directed to put the petitioners in possession of
lands of similar nature and extent as were the subject matter of
acquisition.
Sd/-
JUDGE
nv*