K.N. Nanjundaradhya and Others vs The Bangalore Development Authority and Others

Anand Byrareddy, J.—1. Heard the learned Senior Advocate Sri Ananth Mandagi appearing for the petitioners and the learned counsel for the Bangalore Development Authority.

The facts are as follows; The Petitioners claim to be in possession of land bearing Survey No. 177 (old No. 39), Block No. 1, of Ramasandra Village, Kengeri Hobli measuring 5 acres 7 guntas which was acquired by petitioner No. 1 at a Public Auction conducted by the Deputy Commissioner for recovery of arrears of land revenue. There is no dispute so far as the title of the petitioners concerned, as the second petitioner acquired property by virtue of a registered partition deed and their names are duly mutated in the revenue records. It is claimed that, the total extent of land bearing Survey No. 39 is 30 acres 5 guntas. According to the entry in the mutation register the names of holders of respective extent is shown and after excluding the hiduvali land measuring about 5 acres 7 guntas, an extent of 23 acres 38 guntas was shown as Government kharab land.

The first respondent, Bangalore Development Authority, having issued a preliminary notification under Section 17 of the Bangalore Development Authority Act, 1976 dated 14.12.2001 intended to acquire various items of lands for formation of a residual layout namely ''Sir M. Vishveshwaraiah Layout''. It was followed by a Final Notification dated 31.10.2002 and the name of petitioner No. 1 was shown at Sl. No. 154 thereof. After issuance of the Final Notification, petitioners being aggrieved by the inclusion of their land had filed a writ petition before this Court in W.P. No. 47474/2002. That writ petition was disposed of along with various other petitions which pertained to challenging the validity and correctness of the acquisition proceedings. It was the petitioners specific contention that the total extent of land was 28 acres 3 guntas, out of which only 23 acres 38 guntas was Government kharab land and the remaining extent of 5 acres 7 guntas was hiduvali land which was claimed by the petitioners as owners and according to the petitioners the said land has not been acquired by the first respondent. When this contention was raised, the first respondent was directed to submit their stand, and a memo was filed on 20.10.2003 which was as under:

MEMO

"1. Regarding Survey No. 39 of Ramasandra Village, the acquisition has been in respect of the entire 23 acres 38 gutnas. In the Record of Rights the entire land is shown as kharab.

Normally when Government Kharab land is also proposed for acquisition, along with the award, the amount of compensation will be forwarded to the concerned Tahsildar. It is intended to be credited to the account of the Government.

In this case, there are also the names of K.S. Nanjundaradhya was his son K.S. Basavradhya shown as the persons primarily liable to pay the land revenue. The records do not show the real extent of their respective interest. The records further show that there has been an attempt to have a durasth from Department of Land Records in favour of those Khatedars after the issue of the Preliminary Notification. Those records produced by them also show that it has been to the extent of 5 acres only. The writ petition itself has been filed only by the son. The extent of his share according to the Partition Deed produced by him is only one acre. The father has not challenged the proposal for acquisition to the extent of his interest in the land."

It is contended by the petitioners that though such a stand was taken by the BDA, this Court proceeded to dismiss the writ petition but however, the specific contention taken by the petitioner was never addressed, as it was disposed of by a common order pertaining to the challenge to the validity of the Notifications, whereas, the petitioners were only concerned with the error of having sought to include the petitioner''s lands in the acquisition proceedings. Therefore, a review petition came to be filed by the petitioners in R.P. No. 841/2004 and the review petition was admitted and an interim order was granted and the parties were directed to maintain status quo. This Court after hearing the matter on merits had opined that there was a mistake in including the petitioner''s land when the kharab land was only to an extent of 23 acres 38 guntas, which land was acquired and the hiduvali land of the petitioners was not acquired. On recording that finding of fact, the review petition was disposed of on the ground that the petitioners could not claim to be aggrieved by the Notifications for acquisition. After disposal of the review petition, the respondents had returned all the documents and certified copies to these petitioners, as those documents were unnecessary, as the lands of these petitioners were not acquired by the Bangalore Development Authority. When matters stood thus, one of the petitioners had approached the first respondent to furnish a ''No Objection Certificate'' in order to undertake development on the land in question in view of the order passed by this Hon''ble Court in the Review Petition. In spite of the order of this Court having become final, an endorsement was said to have been issued, dated 23.1.2007, by the third respondent stating that, of the 23 acres 38 guntas acquired by the Bangalore Development Authority, it included 5 acres 7 guntas of land earlier comprised in Survey No. 39. After durasthi the same is assigned with new number, namely No. 177, which was the subject matter of the acquisition proceedings and therefore the petitioners seeking a no objection certificate to develop the land did not arise. The petitioner was also issued with an Award Notice on 1.3.2007, under which the petitioner was called upon to hand over possession of the land. It is in this background that the present writ petition is filed.

The BDA has entered appearance and has filed statement of objections to contend that the writ petition is not maintainable either in law or on facts. Since the petitioners'' earlier writ petition in W.P. No. 47474/2002 was already dismissed, the present writ petition was not maintainable and that the land bearing Survey No. 39 new number 177, measuring 5 acres 7 guntas at Ramasandra Village, Kengeri Hobli, Bangalore South Taluk was the subject matter of the acquisition proceedings for the formation of Sir M. Visveswaraya Layout and that the total extent of the land measuring 23 acres 38 guntas had been taken possession of and handed over to the Engineering Section on 18.3.2003 and the layout was formed in 4 acres of land and sites had been allotted to the general public and yet another extent of 5 acres 7 guntas was handed over to the Engineering Section on 7.3.2007 and therefore, the entire extent of land claimed by the petitioners had vested with the State and it has been conveyed in favour of third parties. This is after all other formalities such as passing of the award, handing over the physical possession had been complied with. Therefore, the petitioners had no right whatsoever over the land in question.

It is also contended that according to the Record of Rights the extent of land which is asserted was only 23 acres 38 gutnas and the assertion that there is a balance extent of 5 acres 7 guntas which is claimed by the petitioners is a false and misleading assertion. It is on these pleadings the counsel have advanced their respective case with reference to the material documents.

The petitioner in fact has also filed a rejoinder to counter the stand taken by the Bangalore Development Authority and it is pointed out that in spite of the orders passed by this Court in the aforesaid Review Petition, the stand of the Bangalore Development Authority is inexplicable and the order passed in the review petition has attained finality and it is now not open for the BDA to reassert that the extent of land notified included the petitioner''s land. The contention that since a writ petition filed by the petitioner earlier has been dismissed and the present petition is not maintainable is also not tenable, as the review petition having been filed by the petitioner and the same having been allowed is not denied. Therefore, the endorsement which is under challenge in the present petition is to demonstrate the unreasonable stand of the BDA notwithstanding the finding of this Court in the earlier round. The assertion of the respondent BDA that the land was kharab land that there was no hiluvadi land of the petitioner is on the mistaken impression that the Record of Rights indicated the kharab land measuring only 23 acres 38 guntas and that there was no other land formed part of survey No. 39 now comprised in survey No. 177. It is again reiterated that land measuring 5 acres excluding 7 guntas of kharab originally belonged to one Hanumantha and since he had defaulted in payment of land revenue, the State Government had disposed of the land by way of public auction and the first petitioner was the purchaser. Based on the sale certificate the petitioner''s name was effected in the revenue records and the mutation register extract, which cannot be denied. It is also pointed out that, the Special Deputy Commissioner Bangalore District had exercised his power under Section 136(3) of the Karnataka Land Revenue Act, 1964 and initiated proceedings against the petitioner and six others alleging that fabricated documents had been created in respect of 30 acres and 5 guntas of land in Survey No. 39, Ramasandra Village, Kengeri Hobli, Bangalore South Taluk and had directed the cancellation of entries made in their favour and also to resume the land to the Government vide Order dated 5.8.1998. Being aggrieved by the said order, a writ petition had been preferred before this Court in W.P. Nos. 28494-495/1998 challenging the order aforesaid. This Court had quashed the said order vide order dated 27.8.1999 and remanded the matter for fresh disposal. On such remand, the Special Deputy Commissioner had held an enquiry and had passed a detailed order to the effect that, the Sale Certificate issued in favour of the petitioner was a genuine one and declared that the petitioner was the owner in possession of 5 acres 7 guntas of land in Survey No. 39, by order dated 12.10.2000. Mutation was also effected in the name of the first petitioner vide entry No. 22/2000-01 and consequently the name of the first petitioner was restored in the mutation register and the first petitioner''s name to the extent of 4 acres and the second petitioner''s name was effected to the extent of 1 acre in Survey No. 39, Block No. 1, Ramasandra Village, Kengeri Hobli, Bangalore South Taluk. Consequent upon the entries in the Mutation Register, the Record of Rights also reflected the said position. It is thereafter that the survey number of the land was changed as survey No. 177. Hence, the learned Senior Advocate Shri Mandagi, would assert that there was a mistake committed by the Bangalore Development Authority in proceeding on the footing that Survey Number 39 was kharab land and the total extent was only 23 acres 38 guntas while ignoring the fact that 5 acres and 7 guntas of hiduvali land which the petitioners had purchased at a public auction and this having been recognized by this Court in the earlier proceedings cannot wished away by the Bangalore Development Authority. It is on this basis background that the Bangalore Development Authority had been called upon to furnish a joint survey report which was said to be available on record in the earlier proceedings and spite of time being granted to the Bangalore Development Authority, on more than one occasion to produce the said joint survey report which would have clinched the issue one way or the other, the learned counsel for the BDA would now report on instructions, that the Bangalore Development Authority has been unable to trace the joint survey report. Therefore, in the above background, since there is already a finding by this Court on the basis of records which must have been examined by the Court on the earlier occasion and having categorically found that the land of the petitioner was definitely not part of the land that was notified for acquisition. It cannot be said that, Bangalore Development Authority was justified in stating that the petitioners land has been acquired in Survey N. 39 when the extent notified in Survey No. 39 was only 23 acres and 38 guntas excluding 5 acres and 7 gutnas held by the petitioners. Consequently, an adverse inference is to be drawn against the BDA for being unable to produce the records, substantiating its contention and when there is already a finding in favour of the petitioners, the petitioners'' labour in establishing their case is reduced to that extent. Therefore, this Court reiterates the earlier findings of this Court that the petitioners have established their claim over 5 acres and 7 guntas of Hiduvali land in old survey No. 39 now bearing Survey No. 177 of Ramasandra Village, Kengeri Hobli, Bangalore South Taluk.

The Petition is allowed accordingly. The impugned endorsement stands quashed. Consequently, Annexure - G and H stand quashed. The petitioners'' application for No Objection shall now be reconsidered by the Bangalore Development Authority.