Govinda Udupa and Others vs The State of Karnataka and Others

Ram Mohan Reddy, J.—Land measuring 12 acres and 1 gunta in Sy. No. 43 of Kothanur village, Uttarahalli Hobli, Bangalore South Taluk, is the subject matter of these petitions seeking the following reliefs:

a) To set aside provisional orders issued by the firth respondent in favour of petitioners showing entire land in Sy. No. 43, measuring 20 acres 18 Guntas of Kothanur Village, J.P. Nagar, 8th Stage, Bangalore, as if the petitioners are unauthorized occupants and one of the notice served on the petitioners is produced and marked as annexure ''A'', Notice No. BDA/AEE/1(P)/SOUTH/T87/2015-16, DATED: 8.5.2015 by the 5th respondent.

b) To declare that the portion of area measuring into extent 12 acres 1 gunta in Sy. No. 43 of Kothanur Village, J.P. Nagar, 8th Stage, Bangalore is fully developed and petitioners are in occupation of their respective sites formed in the revenue layout since from 30 years and called as Sree Venkateshwara Layout;

c) To declare that the proposed formation of J.P. Nagar, 8th Stage, Bangalore, unable to form the layout in portion of land measuring 12 acres 1 Gunta in Sy. No. 43 of Kothanur Village, J.P. Nagar, 8th Stage, Bangalore, and the scheme is lapsed as per Preliminary Notification No. BDA/SALAO/A6/PR/229/1988-89, dated 23.03.1988 Gazette published on 26-05-1988, 02-06-1988 and 09-06-1988 in consecutive issues and Final Notification in No. HUD292 MNX 93, dated 19-10-1994 and published in Karnataka Gazette on Part IX No. 886, No. UDD/434/MNX97, dated 12.09.1997, which is mentioned in Annexure ''A'';

d) To regularize the construction made by the petitioners in accordance with provision of BDA Act and the petitioners undertake to pay the development and betterment charges fixed in accordance with law in portion of land measuring 12 acres 1 gunta in Sy. No. 43 of Kothanur Village, J.P. Nagar, 8th Stage, Bangalore shown in the schedule of Annexure ''A'';

e) Call for records pertaining to correspondence made for unable to form the layout in portion of land measuring 12 acres 1 gunta in Sy. No. 43 of Kothanur Village, J.P. Nagar, 8th Stage, Bangalore produced along with the writ petition and opinion given by the authorities;

f) Direct the respondent authorities not to cut and remove the amenities like electricity, water and other facilities availed by the petitioners in portion of land measuring 12 acres 1 gunta in Sy. No. 43 of Kothanur Village, J.P. Nagar, 8th Stage, Bangalore, which is called as Sree Venkateshwara Layout;

g) Direct the respondent authorities not to dispossess and demolish the structures already existing in portion of land measuring 12 acres 1 gunta in Sy. No. 43 of Kothanur Village, J.P. Nagar, 8th Stage, Bangalore which is called as Sree Venkateshwara Layout shown in the list produced at Annexure ''K'';

h) Call for records;

i) To grant such other relief/s deems fit by this Hon''ble Court under the facts and circumstances of the case, in the interest of justice and equity;

It is the assertion of the petitioners that 20 acres and 18 guntas of land in Sy. No. 43 of Kothanur village, amongst other large tracts of land were sought to be acquired by respondent-Bangalore Development Authority (for short ''BDA'') for a public purpose that is formation of Jai Prakash Nagar 8th Stage (JP Nagar) and that 8 acres and 17 guntas have been put to use for the formation of said layout while in the remaining there are revenue sites, held, possessed and owned by the petitioners purchasers, much after the issue of preliminary notification dated 23.3.1988 published on 26.5.1988, 2.6.1988 and 9.6.1988 in consecutive issues and final notification dated 19th October 1994, published in the Karnataka Gazette on 12.9.1997, following which, an award was passed on 4.11.1995 by the Special Land Acquisition Officer of the BDA and a notification under Section 16(2) was published in the Karnataka Gazette on 9.2.2012. It is the allegation of the petitioners that being in lawful possession of the properties have put up construction of building and are residing therein.

Sri N.R. Naik, learned counsel for petitioners submits that petitioners acquired right, title and interest in the immovable properties, the details of which have been set out in paragraph 7 of the memorandum of writ petitions, pursuant to sale deeds executed and registered, Annexures-G series.

A perusal of the copies of the sale deeds 5 in number do not disclose that what is conveyed are the sites in Sy. No. 43 of Kothanur village since what is mentioned in the schedule to each of the sale deeds is site number and khatha number. Insofar as the dates of sale deeds are concerned, the columns provided in paragraph 7 of the memorandum of writ petitions, disclose that most of them are purchased from the year 1993 and onwards, in any event much prior to the preliminary notification dated: 23.03.1988. Since the conveyance deeds do not disclose the identity of the immovable properties purchased to be in Sy. No. 43 of Kothanur village, on that score alone, the petitioners are not entitled to any of the relief sought for.

Even assuming for a moment but not conceding that petitioners have purchased certain properties which were acquired by the BDA, nevertheless, were not the persons who are owners as on the date of the notification i.e., 23.3.1988, and therefore, since the owners on the date of notification have not come before Court, on that score too, these petitions deserve to be dismissed.

It is no-doubt true that if the petitioners were to establish, as a matter of fact, that they purchased lands in Sy. No. 43 of Kothanur village, since notified for acquisition, subsequent to the notification, may at best, be entitled to claim compensation by virtue of sale deeds in their favour, that is, the right, title and interest of the predecessors but they cannot be said to be the owners for allotment of any site as right of ownership would be determined with reference to the date of preliminary notification. On that score too, none of the reliefs sought for in the petitions are available to the petitioners.

In Union of India (UOI) Vs. Shivkumar Bhargava and Others, AIR 1995 SC 812 : (1995) 6 JT 274 : (1995) 1 SCALE 316 : (1995) 2 SCC 427 : (1995) 1 SCR 354 : (1995) 1 UJ 304 , Apex Court observed thus:

"The policy of the Government indicates that the person whose land was acquired means the owner as on the date, notification was notified for acquisition, and he alone will be entitled to allotment of alternative site. A person who purchases land subsequent to the Notification may be entitled to claim compensation by virtue of sale made in his favour, namely, the right, title and interest the predecessor had but, he cannot be said to be the owner for allotment since the right of ownership would be determined with reference to the date on which Notification under Section 4(1) was published. This was the view of this Court in another case while considering the Full Bench Judgment of the Delhi High Court. Under these circumstance, the appeal is allowed. The respondent cannot be considered to be the owner as on the date of Notification under Section 4(1) published in the Gazette. The direction given by the learned Single Judge is accordingly quashed. The Writ Petition stands dismissed.

No costs."

The aforesaid observations were followed by the full Bench of this Court in Poornaprajna House Building Co-operative Society, Bangalore Vs. Bailamma @ Dodda Bailamma and Others, (1998) ILR (Kar) 1441 : (1998) 3 KarLJ 304 .

In Shanti Sports Club and Another Vs. Union of India (UOI) and Others, AIR 2010 SC 433 : (2009) 11 JT 311 : (2009) 11 SCALE 731 : (2009) 15 SCC 705 : (2009) 14 SCR 710 : (2009) 9 UJ 4025 , the Apex Court held thus:

"Purchasers coming in possession of land more than ten years after finalization of acquisition proceedings-appellant purchasers cannot plead equity and seek Court''s intervention over protection of unauthorized constructions raised by them-Purchasers cannot demand withdrawal from acquisition. Transferee of acquired land can, at best, step into the shoes of land-owner and lodge claim for compensation."

In U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, AIR 1996 SC 1170 : (1996) 2 CTC 60 : (1996) 1 JT 354 : (1996) 1 SCALE 389 : (1996) 3 SCC 124 : (1996) 1 SCR 683 : (1996) 1 UJ 549 it was observed thus:

"It is well settled law that after the notification under Section 4(1) is published in the gazette any encumbrance by the owner does not bind the Government and the purchaser does not acquire any title to the property."

For the aforesaid reasons, these petitions devoid of merit, are dismissed. No costs.