Mr. Ramakrishna Murthy, Mr. Chandrashekar C., Mr. C. Ashwatha and Mr. C. Venu vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned counsel for the respondents. The facts stated are as follows:--

The petitioners are said to be the brothers and sons of Late Venkatagiriyamma. They claimed theft the agricultural lands bearing Survey No. 54/1 measuring 30 guntas of Errappanapalya, Nagawara, Kasaba Hobli, Bangalore North was the family property of the petitioner''s grand-father one Yellappa who during his life time had executed a gift deed in favour of the mother of the petitioners namely Venkatagiriyamma. She had partitioned the property under a registered partition deed dated 28.9.2006 and in terms of the same the petitioners'' claim equal share in the said property. The petitioners'' further state that though they got the land converted for non-agricultural purpose as per the order dated 22.3.2005 passed by the competent authority, it transpires that a preliminary notification u/s 17 of the Bangalore Development Authority Act, 1976 was issued on 2.6.1978 proposing to acquire an extent of 922.06 guntas in respect of the scheme for the formation of a residential layout known as Hennur Bellary Road III Stage including the lands of the petitioners and the final notification u/s 19 dated 2.2.89 was published in Karnataka Gazette. This was after a lapse of 11 years from the date of preliminary notification.. It was further stated that it was for the purpose of improvement scheme for the formation of layout called Hennur road-Bellary Road 3rd Stage by the BDA and a sanction was said to have been accorded by the Government on 24.11.1974. The mother of the petitioners Venkatagiriyamma had initially-challenged the acquisition proceedings in a writ petition in W.P. No. 15321/93. The petition was dismissed by an order dated 20.1.1993 on the ground of inordinate delay. The writ appeal in W.A. No. 1224/93 was also dismissed reserving liberty to the mother of the petitioners to approach the second respondent to seek higher compensation and upheld the acquisition proceedings. It is the case of the petitioners that though these acquisition proceedings had been challenged and had been negated no further development had taken place over the land in question and the same was in turn well developed with the construction and electricity connection etc apart from the surrounding areas which are equally well developed and occupied by the owners thereof. The petitioners'' contend that apart from the other proceedings pertaining to Ring road which was subsequently formed there was no development that had taken place in the said land and after more than 23 years there was no substantial implementation of the Scheme and therefore, it is contended that as contemplated u/s 27 of the BDA Act, 1976, the Scheme itself has lapsed. In this backdrop that the petitioners had again filed a writ petition in W.P. No. 7139-42/13 questioning the legality of the entire proceedings at that point of time. This Court by its order dated 15.2.2013 disposed of the petition holding that the petitioners could make a representation to the Bangalore Development Authority to consider their case in terms of the decision of the Apex Court in Bondu Ramaswamy and others v. BDA decided in C.A. No. 4097/10 and connected cases dated 5.5.2010. The petitioners thereafter are said to have made a representation dated 7.3.2013 and 12.7.2013 to denotify the proceedings in terms of the observations made by this Court in its order dated 15.2.2013. However, the same having been recommended by the Bangalore Development Authority for consideration by the State Government, the State Government has without assigning any reasons rejected the proposal. It is in this background that the present petitions are filed.

The learned counsel for the petitioners has placed on record in tabular form, graphically indicating the lands that was originally notified, acquired and the extent that has been developed thus:--

Under the preliminary notification dated 2.6.1978 the total extent of land that was sought to be acquired is 982.06 acres. The final notification dated 16.1.1989 was restricted to 433.32 acres. The land which was acquired and possession of which was taken was an extent of 102.36 acres. Out of this 102.36 acres, even according to the Bangalore Development Authority, there were unauthorized buildings over 47.36 acres and there were pockets of vacant land to an extent of 18.37 acres and vacant land to an extent of 36.13 guntas. It is evident from the above figures that there was no contiguous land that was capable of being developed into a layout and even as on date there is no development whatsoever and there is no layout formed which would straight away make out a case for the Scheme not having been implemented in terms of Section 27 of the Act. Therefore, the very Scheme of formation of the layout would lapse. Secondly, it is pointed out that even after a lapse of several decades the possession of the land has remained with the petitioners and possession has never been taken. Therefore, even if the Scheme has not been implemented substantially since the possession has not been taken, the question of the land now vesting with the State Government does not arise. Therefore, the very proceedings are null and void insofar as the petitioners'' land is concerned. Hence, the learned counsel would seek a declaration to that effect. He would also submit that insofar as the other petitioners whose lands were proposed to be acquired for formation of ring road, which has already been referred to above, this Court has observed that ring road having been formed and the land of the petitioners not having been utilized for the formation of ring road, possession of the lands having been taken, which are under challenge, if the present proceedings were declared to be nullity insofar as those lands are concerned and even if the lands could be utilized for formation of the layout which is the subject matter of the present petition, the scheme has lapsed and the petitions were allowed on those terms in W.P. Nos. 7271-72/11 dated 17.1.2013. Therefore, the learned counsel would submit that the petition be allowed, notwithstanding that there were earlier challenges to the acquisition, on the present grounds that are available to the petitioner which are not taken away by virtue of any earlier challenge to the proceedings as the land can never be said to have been vested with the State Government as neither any material is placed in that regard nor the scheme under which the land is sought to be acquired is subsisting as there is no substantial implementation of the same. Therefore, the learned counsel submits that the petitions be allowed in terms prayed for.

The petition is vehemently resisted by the respondent. The BDA has filed its statement of objections to contend that the petitioners are disabled from seeking any relief as prayed for as the State Government has rejected the proposal made by the petitioner pursuant to the directions of this Court dated 15.2.2013. It is further contended that the scheme has been substantially implemented and therefore the primary contention that the Scheme has lapsed on account of the same not having been implemented substantially is not available to the petitioner.

The statement of objections has referred to several decisions to support the contention that the petitioners are disabled from challenging the acquisition proceedings. However, during the course of hearing, the primary contention of the BDA is that the scheme has been substantially implemented notwithstanding that there were material to indicate that even according to the BDA most of the land was not capable of being developed or not even taken possession of was apparent and having been called upon to produce the records even to this date, the BDA has not been able to substantiate the contention that the scheme has been substantially implemented nor to refute the figures that have been produced and reiterated by the petitioners counsel as regards most of the parts of the land never having been acquired and the scheme not having been implemented even in respect of 1/4th of the land that was proposed to be acquired. However, it is contended that the petition is barred by principles of constructive res judicata. In that, the very arguments that are sought to be advanced in these petitions have already been raised in an earlier writ petition in W.P. Nos. 7139-42/13 which was disposed of by an order dated 15.2.2013 and the very disposal of the writ petitions would imply that the several grounds which were already raised had been considered and negated and hence, the petitioners are precluded from raising the very same contentions.

The learned Government Advocate on behalf of the State and in support of the statement of objections also reiterates that the present petition being one in the series of petitions that are being filed challenging of acquisition proceedings cannot be entertained on the ground of delay and laches namely the petitioners seeks to challenge the acquisition initiated in the year 1978 and therefore, has to be rejected outright. The further ground that the Scheme has lapsed u/s 27 of the BDA Act is also not tenable as the said prayer made in the earlier petitions admittedly by the petitioners has been negated and the only relief that was granted to the petitioners was to make a representation to the State Government to consider deletion of the land by invoking Section 48 of the L.A. Act and that having been rejected by the State Government as the land is acquired apparently for such other purpose, the question of considering the petitioners'' case would not arise. The learned counsel would further contend that the case of the petitioners that possession has not been taken is also not acceptable. It is seen from the very recommendation made by the BDA to the State Government, it has been indicated that the land has been handed over to the Engineering Section in terms of Annexure-R1 to the statement of objections. This would indicate that the State Government had taken possession of the land in question and it was thereafter handed over to the BDA which in turn has handed it over to the Engineering Section. In that view of the matter, to claim that the land is not vested in the State Government is misleading and it is not open for the petitioners to question the acquisition proceedings at this remote point of time and even if it is established that the Scheme has not been implemented substantially and therefore the Scheme has lapsed and the land having been vested with the State Government would afford no right to the petitioner to question the same after lapse of time and would seek to place reliance on the decision of the Apex Court in the case of Forward Construction Co. and Others Vs. Prabhat Mandal (Regd.), Andheri and Others, to bolster the principle of constructive res judicata as would be applicable to the present case on hand as the petitioners have exhausted and the grounds on which acquisition could be challenged including the one claimed that the Scheme had lapsed pursuant to Section 27 of the BDA Act and therefore, would contend that the petition be rejected.

In the light of the above contentions and the material on record, it is true that no writ petition could be entertained several decades after the acquisition proceedings had been initiated even if it is possible to point out that the land belonging to the petitioners had been taken possession of pursuant to the acquisition proceedings. This is not evident in the respondents having not placed any material on record to demonstrate that the possession of the land had been taken at any point of time insofar as the petitioners'' lands are concerned. Though there is passing reference to the land having been handed over to the Engineering Section of the BDA that by itself would not demonstrate that the possession had been taken. In the case of Banda Development Authority, Banda Vs. Moti Lal Agarwal and Others, the Supreme Court has indicated the broad guidelines and principles on which it could be said that possession was taken in varying circumstances and it has laid down as follows:- 34. The principles which can be culled out from the above noted judgments are:

(i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.

(ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.

(iii) If crop is standing on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.

(iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.

(v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken.

If these principles are applied, as already been stated, in the absence of any record produced by the Bangalore Development Authority it cannot be said that the respondents are in a position to demonstrate that possession of the petitioner''s land had been taken. If possession of the land had not been taken, it does not vest with the State. It is also demonstrated that the Scheme has not been implemented in a substantial manner. On the other hand, it is to be noticed that only 1/4th of the land which was notified for acquisition was taken possession of. Insofar as the contention that there is a bar of res judicata in the petitioners having approached this Court earlier on the very grounds especially in the most recent petition filed in W.P. Nos. 7139-42/13 dated 15.2.2013, it is to be noticed that the said petitions were not heard on merits but was disposed of on a summary opinion that in the light of the award not having been passed or possession not having been taken, it was an appropriate case which could be considered in the light of the Bondu Ramaswamy''s case. It was with that observation the petitions were disposed of while granting liberty to the petitioner to make a representation. The petitioners having made such a representation and the Bangalore Development Authority also having recommended that it could be considered in terms of the said decision, the State Government having offhand rejected and negated the case of the petitioners would certainly require to be addressed by this Court. In that having regard to the above circumstances, even if the State Government was not inclined to denotify the land or withdraw the very acquisition notwithstanding that there was no development over the land in question and that possession had never been taken in respect of the lands in question, it was not open for the State Government to negate the claim of the petitioners for it shall be declared that the Scheme in respect of which the acquisition had been initiated has lapsed insofar as the petitioners'' land is concerned. In the light of the petitioners'' land never having been taken possession it does not vest in the State and in the event if the State requires the land in question for any other public purpose there is no impediment for the State to initiate appropriate proceedings for acquiring the same. The State seeking to retain the land under the acquisition proceedings which are the subject-matter of these proceedings is no longer tenable in view of the legal position. Therefore, the question of res judicata would not be a bar for consideration of the present petitioners'' case.

The petitions are accordingly allowed in terms as above.