K.S. Narayana and Others vs The Commissioner Bangalore Development Authority

A.N. Venugopala Gowda, J.—Challenge in these writ petitions is to an auction notification dated 25.08.2013, as at Annexure-E, issued by the Bangalore Development Authority (for short ''the BDA''), in so far as it relates to the alleged sites belonging to the petitioners are concerned and to direct the respondent not to dispossess the petitioners and also to direct allotment of alternate sites to the petitioners by considering their representations. Petitioners claim item Nos. 26, 27 and 28 i.e., Site Nos. 3DM-316, 3CM-315 and 3CM-301 formed in East of NGEF, Banasawadi Village in Sy. No. 80 shown in the notification as at Annexure-E as belonging to them. Undisputed facts of the case are that the land bearing Sy. No. 80 of Banasawadi Village totally measured 7 acres 9 guntas. Out of the said property, 2 acres and 30 guntas was proposed to be acquired for the benefit of BDA by issue of preliminary notification dated 28.05.1984. A final declaration/notification was published by the Government on 23.10.1986, whereby, the said property was acquired for the purpose of formation of East of NGEF Layout. An Award was passed on 26.05.1988 and the same was approved on 15.06.1988. The Award amount was deposited in the Civil Court on 29.08.1988 and the possession of the acquired land was taken on 22.06.1988. A Notification u/s 16(2) of the Land Acquisition Act was issued and the same was published in the Gazette on 15.12.1991.

The petitioners obtained sale deeds on 03.06.1985, 18.04.1985, 30.05.1985, 23.12.1985 and 04.07.1985 respectively, in respect of portion of the said acquired property from one S. Narayana Gowda and others i.e., after issue of preliminary notification dated 28.5.1984 for acquisition of the property for the benefit of the BDA i.e., implementation of developmental scheme - East of NGEF Layout.

The petitioners had instituted separate suits to pass decree/s of permanent injunction. The suits were decreed on 30.11.1991 and the appeals filed having been allowed, the suits were remanded. After the remand, the plaints were amended. Declaration of title and possession of the plaint schedule properties from the defendants was sought. Suits were dismissed on 29.03.2001. However, appeals filed by the petitioners were allowed on 14.06.2001. Civil appeals filed by the respondent was allowed on 11.10.2006 and the impugned judgment and decrees passed by the Appellate Court were set aside and the decree of dismissal of the suits by the Trial Court was affirmed.

Petitioners submitted representations on 28.03.2007 seeking regularization of their sites and issue of possession certificates. The request was declined and a communication dated 17.10.2007 was sent to the petitioners. A subsequent representation submitted by the petitioner on 10.09.2008 having been considered, was rejected on 19.04.2011. Again, allotment of alternate sites was sought by submitting an application dated 02.02.2013.

Sri R. Chandrashekar, learned advocate for the petitioners contended that without considering representation dated 02.02.2013 of the petitioners, Auction Notification, vide Annexure-E, issued is arbitrary and illegal. He submitted that the respondent has a statutory duty to consider the said representation of the petitioners and in the counter filed to the writ petitions, the respondents having not stated that the said representation having been considered and in view of the interim order passed on 13.09.2013, the auction in respect of Item Nos. 26, 27 and 28 namely site Nos. 3DM-316, 3CM-315 and 3CM-301 vide Annexure-E, in East of NGEF Layout having been stayed, direction may be issued to the respondents to consider the representation dated 02.02.2013.

Sri K. Krishna, learned advocate for the respondent, firstly, contended that as the petitioners having obtained the sale deeds in respect of portion of acquired land for formation of East of NGEF layout, in view of the decision in the case of Poornaprajna House Building Co-operative Society, Bangalore Vs. Bailamma @ Dodda Bailamma and Others, , are not entitled to any relief. Secondly, there being no scheme for allotment of any site on incentive basis and in view of the judgment dated 11.10.2006 passed in Civil Appeal No. 8307/2002 and connected cases by the Apex Court the petitioners are not entitled to any relief and that the writ petitions are nothing but an abuse of process of law. He submitted that petitions may be dismissed with exemplary costs.

Undisputedly, O.S. No. 5371/1989, 2231/1990, 5372/1989, 5391/1989 and 5375/1989 instituted by the petitioners, to pass decree/s declaration of title and possession of the plaint schedule properties and to direct the defendant to deliver the possession of the suit properties were dismissed on 29.03.2001. RFA Nos. 406, 409, 410, 412 and 455 of 2001 filed by the petitioners against the said decrees was having been allowed on 14.06.2001, Civil Appeal No. 8307/2002 and connected appeals filed by the respondent were allowed by the Apex Court and the decrees passed in the appeals were set aside and the decrees passed by the Trial Court on 29.03.2001 dismissing the suits were affirmed. The acquisition of property was pursuant to a preliminary notification dated 28.05.1984 and final declaration/notification dated 20.03.1986. Award passed was approved on 15.06.1988 and the award amount was deposited in the Civil Court on 29.08.1988. The possession having been taken on 22.06.1998, a notification under S. 16(2) of the Land Acquisition Act was issued and published in the Gazette on 05.12.1991. In view of the said proceedings under the BDA Act 1976 and also Land Acquisition Act and the dismissal of the suits, in respect of the property in dispute, makes it clear that the petitioners do not have any right, title or interest, much less the possession and enjoyment of the said sites. Petitioners do not dispute that the representations submitted on 17.10.2007 and 10.09.2008 have been rejected by the respondent.

The respondent having formed a layout of sites, pursuant to the said acquisition, issued Annexure-E, to sell the notified sites in public auction. The properties shown in the said notification being belonging to the respondent, the petitioners have no right to question the said auction notification.

Petitioners having obtained the sale deeds from the erstwhile land owners, whose property has been lawfully acquired by the Government for implementation of developmental scheme by the respondent, cannot challenge the said acquisition proceedings. Even otherwise also, they have not questioned the acquisition proceedings of the property, noticed supra. Purchase of acquired property subsequent to the issue of preliminary notification does not confer on the purchaser any title. The purchaser/s can only claim compensation on the basis of his/their vendor/s title. In the instant case, after the Award was passed and approved, the award amount has been deposited in the Civil Court on 29.08.1988. The property having vested in the State free from all encumbrances, after taking possession, was delivered to BDA. The respondent having formed the sites, notified few of the sites, vide Annexure-E, for sale in public in auction. No exception can be taken by the petitioners for the said course of action by the respondent, in as much as, the suits instituted by the petitioners claiming ownership rights over the property have been dismissed, which decrees were ultimately affirmed by the Apex Court (See Commissioner, Bangalore Development Authority Vs. K.S. Narayan, ). The petitioners having sought delivery of possession of the suit properties in the said suits and the suits having been dismissed, cannot contend that they are still in possession and they shall not be dispossessed.

Sri R. Chanddrashekar was not able to show any incentive scheme having been announced at any point of time by the respondent in respect of the properties acquired for the implementation of East of NGEF Layout. Even otherwise, the petitioners have no right to seek allotment of alternate sites on incentive basis, since they obtained sale deeds from persons, whose property was acquired and the acquisition remained unchallenged. A writ of mandamus can be issued only when there exists a legal right in the petitioners and a corresponding legal obligation on the respondent. Sri R. Chandrashekar was unable to point out any existing legal right in the petitioners and a corresponding legal obligation on the respondent. Hence, the prayer in the writ petition to direct the respondent to consider the representation dated 02.02.2013 is unacceptable, more particularly, in view of the previous civil litigation, noticed supra and also the rejection of the representations by the respondent on 19.04.2011.

In the result, the writ petitions being devoid of merit are dismissed with no orders as to cost.