M. Sreenivas - Petitioner @HASH State of Karnataka and Others

Ashok B. Hinchigeri, J. - As the questions of facts and law involved in W.P. Nos. 35912 and 35913 of 2016 are the same, they are ordered to be clubbed, heard together and are being disposed of by this common order.

The narration of the facts of the case are with reference to W.P. No. 35912 of 2016. The petitioner, who is the owner of 4 acres 9 guntas (including 2 guntas of phot kharab land) standing at Survey No. 97/1A of Uttarahalli Village, Uttarahalli Hobli, Bengaluru South Taluk is seeking the relief of declaration that the Scheme for the formation of Banashankari V Stage Layout in respect of the said property (vide preliminary notification dated 29-12-1988 (Annexure-A) and the final notification dated 7-10-1999 (Annexure-B) have lapsed under Section 27 of the Bangalore Development Authority Act, 1976 (''B.D.A. Act'' for short) as well as under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (''2013 Act'' for short).

Sri K.G. Raghavan, the learned Senior Counsel appearing for Sri Nischal Dev B.R for the petitioner submits that the scheme is not implemented, award is not passed and the possession is not taken. He submits that the issue is no more res integra. This Court, by its order, dated 8-12-2011 passed in W.P. No. 19792 of 2010 has issued the declaration that the proceedings have lapsed in respect of the land covered under the very same notification and for the very same Scheme.

The learned Senior Counsel submits that the respondents have not taken over the possession of the lands. He submits that the respondents baselessly claim to have taken the possession of the lands under two mahazars dated 26-11-1999 (Artnexure-G) and 2-2-2008 (Annexure-G1). He submits that both the mahazars do not even contain the names of the mahazardars, much less their addresses. He submits that the petitioner and his mother Nagamma were never called upon to surrender their possession or to be present at the time of taking over the possession of land. On the other hand, the respondents appear to have been sending the notices to one Doddasiddappa, who sold the land to Siddharth, who in turn sold the land to the petitioner''s mother Nagamma.

In support of the ownership of the land, the petitioner has produced two sale deeds (Annexures-C and C1) and also the extract of the index of the land (Annexure-D).

He relies on this Court''s decision in the case of K.L. Ramesh v. Bangalore Development Authority, Bangalore and Others, ILR 2013 Kar. 3539 for advancing the submission that official version of taking over the possession cannot be believed because both the possession mahazars are in cyclostyled form, some columns therein are left unfilled and the identity of the mahazar witnesses cannot be ascertained.

Sri R.B. Sathyanaravana Singh, the learned Additional Government Advocate appearing for the respondent 1 submits that these petitions are liable to be rejected on the ground of delay and laches.

Sri K. Krishna, the learned Counsel for the respondents 2 and 3 has also raised the threshold objection of delay and laches by relying on the Apex Court''s judgments in the case of Haryana State Handloom and Handicrafts Corporation Limited and Another v. Jain School Society 2003 AIR SCW 7079 and Government of Andhra Pradesh and another v. Syed Akbar, AIR 2005 SC 492

He has also relied on the Division Bench''s judgment in the case of A. Krishnamurthy (since deceased) by L.Rs v. Bangalore Development Authority and Others, ILR 1996 Kar. 1258 (DB) and advances the submission that in the delay in the implementation of the scheme does not automatically entitle the landowner to get the acquisition proceedings quashed. According to him, the question of quashing the acquisition proceedings or declaring them as lapsed would arise, only if there is dereliction of statutory'' duties.

He submits that the petitioner does not have the locus standi to file these petitions, because he is not the owner of the land. He submits that neither the petitioner nor his mother filed objection to the preliminary notification. The objections are filed only by Purnapragna House Building Co-operative Society in respect of the lands in question.

He submits that the possession of the land had to be taken over for the second time, as this Court had quashed the proceedings in the writ petition with the liberty to issue the final notification afresh in respect of certain lands. On the issuance of the final notification for the second time, the possession of the lands had to be taken again on 2-2-2008, as is evident from Annexure-G1. He also submits that the award amounts are already deposited with the Reference Court on 24-7-2008.

The first preliminary objection that the petitioner does not have the locus standi is liable to be overruled. To show that the petitioner''s mother Nagamma is the absolute owner of the lands in question, the petitioner''s side has produced the copies of the sale deeds as Annexures-C and C1. In the official records also the name of the petitioner''s mother is shown as the owner of the lands in question as is evident from the extract of the index of the land records (Annexure-D). Therefore the petitioner''s litigational competence cannot be disputed with any rate of success.

The second preliminary objection raised by the respondents is whether this petition is liable to be rejected on the ground of delay and laches? To consider this preliminary objection, it is profitable to refer to the Apex Court''s judgment in the case of Ram Chand v. Union of India, (1994) 1 SCC 44 wherein it is held that in acquisition matters delay on the part of the petitioners has to be considered along with the inaction on the part of the authorities.

No cogent explanation is forthcoming as to why the Scheme is not implemented and why the compensation amounts are not disbursed to the persons who are entitled to receive the same. That apart, it is not even the case of the respondents that the layout is formed and the sites are allotted to the third parties. I therefore do not propose to throw out these petitions on the ground that the petitioners have approached this Court belatedly. The valuable property rights are involved in the case. In this context, it may be profitable to refer to the Apex Court''s judgment in the case of Esha Bhattacharjce v. Managing Committee of Raghunathpur Nafar Academy and Others, (2013) 12 SCC 649. Paragraphs 21.1 and 21.3 are extracted herein below:

21.1. (i) There should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.

21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis."

On merits, the first question that falls for my consideration is what evidentiary value can be given to the mahazar dated 2-2-2008 (Annexure-G1). It is in cyclostyled form. It just contains the signature of five persons. Neither their names nor their addresses are shown in the mahazar. It is next only to impossible to ascertain the identity of the mahazar witnesses. It is profitable to refer to this Court''s decision in the case of Meenakshi Thimmaiah and Others v. State of Karnataka and Another, ILR 2010 Kar. 62 wherein it is held that if it is not forthcoming as to from whom the possession is taken and if the identity of the signatories to the mahazar is not ascertainable, the version of taking the possession cannot be accepted.

For yet another'' reason too, I have no hesitation in holding that the respondents'' claim of the taking over the possession is lacking in credibility. The mahazar (Annexure-G1) shows that the possession was taken on 2-2-2008, whereas Section 16(2) notification shows that the possession is taken on 17-3-2008. That apart, Section 12(2) notice (Annexure-J) contains the endorsement that it is affixed on the land on 15-3-2008. The said endorsement requires the owner/occupant of the land to hand over the possession on 17(15)-3-2008. When the owner/occupant is called upon to hand over the possession on 17(15)-3-2008, there is no question of his being dispossessed six weeks beforehand on 2-2-2008.

As held by the Apex Court in the case of Prahlad Singh and Others v. Union of India and Others, (2011) 5 SCC 386 the vesting of the land under Section 16 of the Land Acquisition Act, 1894 presupposes the actual taking of possession and till that is done, the legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the Acquiring Authority.

For all the aforesaid reasons, I find it hard to give acceptance to the submissions made on behalf of the respondents that the possession of the land is taken over.

The next question that falls for my consideration is whether the depositing the amounts with the Reference Court amounts to paying the compensation. The compensation amounts cannot be routinely deposited with the Reference Court. It can be done only in certain enumerated circumstances like there is dispute as to who is entitled to receive the amount, the proportion in which it is to be received or the person who is end to receive it does not come forward to receive, etc. It is under these circumstances that the amounts can be deposited with the Reference Court after putting all the persons interested in the land on notice. In the instant case, it is not known whether any of these circumstances were pro /or depositing the amounts with the Reference Court. Besides, nothing rs placed on record to show that the petitioner''s mother Nagamma was put on award notice under Section 12(2) of the said Act. The Apex Court in the case of Pune Municipal Corporation and Another v. Harakchand Misinmal Solanki and Others, (2014) 3 SCC 183 has this to say in para 19:

"19. Now, this is admitted position that award was made on 31-1-2008. Notices were issued to the landowners to receive the compensation and since they did not receive the compensation, the amount (Rs. 27 crores) was deposited in the Government treasury. Can it be said that deposit of the amount of compensation in the Government treasury is equivalent to the amount of compensation paid to the landowners/persons interested? We do not think so. In a comparatively recent decision, this Court in Agnelo Santimano Fernandes and Others v. State of Goa and Another, relying upon the earlier decision in Prem Nath Kapur National Fertilizers Corporation of India Limited, (1996) 2 SCC 71, has held that the deposit of the amount of the compensation in the State''s revenue account is of no avail and the liability of the State to pay interest subsists till the amount has not been deposited in Court."

Therefore, the second question is also answered against the respondents to the effect that the compensation amount is not paid to the petitioners or perhaps anybody for that matter.

For examining the third question as to whether the acquisition proceedings have lapsed by the operation of law, advertence has to be made to the provisions contained in Section 24(2) of the 2013 Act which are extracted herein below:

"24. Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.- (1) ... ....

(2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said Section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act:

Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under Section 4 of the said Land Acquisition Act, 1894 shall be entitled to compensation in accordance with the provisions of this Act."

Thus, all the three conditions for declaring that the proceedings have lapsed are present in the instant case - (a) award is passed on 6-2-2008, five years or more prior to the commencement of the new Acquisition Act; (b) physical possession of the land is not taken; and (c) compensation is not disbursed.

At this juncture, Sri K. Krishna submits that whether the provisions of the said 2013 Act has application for the acquisition made under the BDA Act is pending consideration before the Division Bench.

For the owner of a land, it makes no difference whether the acquisition is for Project A or Project B or whether the acquisition of lands is under Statute A or Statute B. Emphasising that different principles of compensation for the acquired land cannot be laid, the Constitution Bench of the Apex Court has this to say in the case of Nagpur Improvement Trust and Another v. Vithal Rao and Others, AIR 1973 SC 689:

"24. What can be reasonable classification for the purpose of determining compensation if the object of the legislation is to compulsorily acquire land for public purposes?

It would not be disputed that different principles of compensation cannot be formulated for lands acquired on the basis that the owner is old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is a politician or an Advocate. Why is this sort of classification not sustainable? Because the object being to compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type.....

It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts would enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14........"

In the result, I allow these petitions by declaring that the Scheme and the acquisition proceedings initiated vide the impugned notifications have lapsed by the operation of Section 27 of the Bangalore Development Authority Act and Section 24(2) of the 2013 Act and further that the provisions of Section 36 of the BDA Act have become inoperative insofar as they pertain to the petitioner''s lands.

No order as to costs.