Munilakshmamma and Others vs Bangalore Development Authority and Others

Anand Byrareddy, J.—1. Heard the learned counsel for the petitioners and the learned counsel for the respondents.

The petitioners claim that one Munivenkatappa was the father of petitioner No. 16 and grandfather of petitioner Nos. 1, 31, 4, 11, 27, 28, 29, 13, 20, and 21 and father-in-law of petitioner Nos. 3, 10, 12 and 17 and great grandfather of petitioner Nos. 5, 7, 6 had purchased land in Survey No. 15/1B measuring 28 guntas situated at Kottanur Village, Uttara Hobli, Bangalore South Taluk, under sale deeds dated 11.12.1986 from one Sampath Mudaliar, which is described in Schedule-I to the petition.

Munivenkatappa is said to have purchased the land in Survey No. 15/1B measuring 28 guntas under a sale deed dated 11.12.1986 from one Muniyappa, which is also described in Schedule-2 to the petition and therefore was the absolute owner of 1 acre 16 guntas of land in Survey No. 15/1B measuring 28 guntas of Kottanur village. Munivenkatappa had also purchased 1 acre 20 guntas of land in Survey No. 15/1C under a sale deed dated 27.4.1956 described in Schedule-3 to the petition.

It is claimed that petitioner No. 16 and his brothers namely, late Muniyappa, Jediyappa, Munikrishna and Muniraju had partitioned the said property belonging to Munivenkatappa on 5.11.1987 and each of them was allotted 14 guntas of land in survey No. 15/1B and 15 guntas of land in Survey No. 15/1C, under a partition deed. Thereafter, the revenue records were also mutated in the name of the legal heirs of Muniyappa and Muniraju, who are also said to have partitioned the properties amongst their family members. Several other petitioners are subsequent purchasers of the sites formed in land bearing survey Nos. 15/1B and 15/1C of Kottanur village and it is claimed that they have constructed their residential houses on the sites and have been paying taxes and are provided with electricity and water connection and the khata certificate was also issued by the local authority.

In this background, it is stated that the Bangalore Development Authority had issued a preliminary notification dated 23.3.1988 under section 17(1) of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the ''BDA Act'', for brevity), proposing to acquire 1009 acre 1 gunta of land of Kottanur Village for the formation of a residential layout called "Jayaprakashnarayan Nagar 8th Stage Layout". The land comprised in survey No. 15/1B measuring 2 acre 16 guntas and the land in survey No. 15/1C measuring 2 acres 12 guntas was proposed for acquisition and the names of M. Hanumaiah, Chinnappa, Venkatappa and Muniyappa are shown as khatedars. Munivenkatappa is shown as the khatedar in respect of survey No. 15/1C.

It is stated that pursuant to the Preliminary Notification, a declaration under Section 19(1) of the BDA Act was issued dated 19.10.1994 notifying the lands measuring 958 acre 15 guntas of Kottanur village. The land in survey No. 15/1C was also notified in the final declaration. However, the said final declaration was subject matter of challenge before this court in a writ petition in WP 32881/1994 which was allowed by order of this court dated 26.9.1996, quashing the declaration on the ground that there was no prior approval of the government as required under Section 18(3) of the BDA Act. Liberty was however reserved to initiate fresh proceedings. A declaration was thereafter issued on 17.9.1997 notifying the lands measuring 958 acre of the aforesaid village and final notifications dated 19.10.1994, 17.9.1997 and 7.10.1999 were issued in respect of lands measuring 974 acre 8 guntas, 327 acre 12 guntas and 92 acre, respectively.

The petitioners herein are challenging the notification dated 17.9.1997 pertaining to 327 acres and 12 guntas which includes the land bearing survey No. 15/1B and 15/1C.

It is pointed out that as on the date of the petition, the layout has been formed in 201 acre 21 guntas, out of 543 acre 1 gunta and the Scheme originally intended to acquire 1009 acre, out of which only 201 acre 29 guntas having been utilized, it is evident that the second respondent had failed to implement the scheme substantially on the face of it.

It is this which is primarily contended to seek a declaration that the scheme has lapsed. It is also pointed out that though final notifications are issued, the latest of which was on 7.10.1999, the implementation of the scheme being in respect of just over 200 acre of land, it is evident that the scheme has lapsed.

Further, insofar as the petitioners'' land is concerned, the petitioners continue to be in occupation and possession has not been taken. In the absence of possession having been taken, the land has not vested in the State and therefore, even the acquisition would lapse. The learned Counsel would submit that in terms of section 27 of the BDA Act, if the scheme has not been implemented substantially within a period of five years from the date of final notification, the scheme would lapse. Section 36 of the BDA Act would also provide that the provisions of the Land Acquisition Act, 1894 would no longer be applicable. Hence, not only the scheme, but even the acquisition would lapse as there is no mechanism under which the acquisition proceedings can be taken forward.

It is further pointed out that there have been several petitions challenging the very acquisition before this court and the same have been allowed quashing the acquisition and declaring that the scheme has lapsed and therefore, the petitioners would seek that similar relief be granted in these petitions.

The BDA has entered appearance and has sought to file statement of objections to point out that the petitioners are all subsequent purchasers of sites, which have been unauthorisedly formed in the land in question, which is admittedly agricultural land. And further, having regard to the admitted circumstance that the said land was notified for acquisition and the acquisition proceedings having been completed by passing of awards and the amount having been deposited in the civil court, possession has also been taken. In this regard, the notification under section 16(2) of the Land Acquisition Act, 1894, has also been published in the gazette. It is therefore contended that the petitioners have no locus standi to challenge the acquisition, who are subsequent purchasers and the acquisition proceedings having been completed in all respects, the land has vested in the State. There is no substance in the contention that the scheme has lapsed. Even according to the petitioners, a large extent of 201 acre 29 guntas having been developed into a layout, the remaining extent which is also acquired is under active development, except for pockets, where there are interim orders operating against the BDA from going ahead with the development and formation of the layout.

Therefore, the primary contention that the scheme has not been substantially implemented and that the scheme has lapsed is not a tenable contention. However, the question of the scheme having lapsed in respect of small portion of the entire extent of the acquired land is not tenable. It is also settled legal position that even if the scheme is said to have lapsed for argument sake, the acquisition does not lapse. For if the possession has been taken, the land vests in the State and it would still be available for the State to use the same for some other purpose. This is as laid down in Offshore Holdings Private Limited vs. BDA & Others , (2011) 3 SCC 139. Hence, it is contended that there is no substance in the present petitions and that the same be dismissed.

The State Government has not filed any statement of objections.

The learned Government Advocate however would endorse the fact that it would not be open for the subsequent purchasers to question the acquisition proceedings. Though on publication of the notification under Section 16(2) of the LA Act, the presumption in law is that the possession has been taken, it would be for the petitioners to prove that they continued to be in possession. The petitioners are several in number and sampling of documents produced to demonstrate that they are in possession would not establish that all of them are in possession of the properties in question.

By way of reply, the learned counsel for the petitioners would point out that the contention as to the BDA having formed a layout over an extent of 201 acre and 29 guntas is not in serious dispute. However, this would not amount to substantial implementation. Admittedly, what was proposed to be acquired was 1009 acre and the same having been reduced to 543 acres is itself scaling down the acquisition to about half extent sought to be acquired in the first instance and of which, if 201 acre had been developed, it cannot be said that there has been substantial implementation of the scheme by any standard. Therefore, the rigour of section 27 of the BDA Act would apply and the scheme should be declared as having lapsed.

Insofar as the developed area of the layout is concerned, it would be for the allottee of such area to be relocated elsewhere. The petitioners would further assert that the claim of the BDA that possession has been taken, as is reflected from the notification issued under section 16(2) of the LA Act, 1894 is not also tenable. Mere reliance on notification under section 16(2) does not demonstrate or establish the taking over of physical possession of the land. There is no other material evidence produced to demonstrate that the physical possession was taken over and the petitioners were divested of their possession. There is not even mahazar produced by the respondents to disclose that any such possession has been taken. And insofar as taking over of physical possession is the crucial circumstance to demonstrate that the land has vested in the State. The Supreme Court has laid down that there is no hard and fast rule as regards establishing the factum of taking physical possession of the land. It would vary from case to case. In the present case, it is pointed out that apart from reliance being placed on a notification issued under section 16(2) of LA Act, there is no other material placed before the court. The respondents who were at liberty to produce the records to demonstrate that such physical possession has been taken, have not chosen to produce any such material, except filing statement of objections. Therefore, the learned Counsel would submit that not only the scheme has lapsed, but also the acquisition and seeks that there be a declaration. Insofar as the contention that the subsequent purchaser is not in a position to challenge the acquisition is concerned, a division bench of this court has opined that the right of a subsequent purchaser is always available to claim declaration that the scheme has lapsed if there are no steps taken to substantially implement the scheme. The learned Counsel, therefore, would seek that the petition be allowed.

In the above facts and circumstances of the case, on the face of it, as to the question whether the scheme has been substantially implemented, it is to be held, obviously it has not been. The contention of the BDA that a large tracts of land are locked up in litigation and by virtue of the interim orders granted in those cases, the BDA has not been able to implement the scheme over other extents that are acquired has not been substantiated by any material placed on record.

Therefore, to contend that the scheme has been substantially implemented, but for the interim orders granted in pending litigation, ought to have been demonstrated with reference to the material before the court. Am empty claim could not suffice.

Hence it may safely be presumed that the scheme has not been substantially implemented. This is the view as already taken in several petitions filed before the court in respect of the very acquisition. Therefore, the question whether the scheme has been implemented would have to be answered in the negative. Hence, the scheme is deemed to have lapsed. Insofar as the contention that even otherwise the land has vested in the State and therefore it would not be available for the owner or any subsequent purchaser to claim the same, is also not tenable. To claim that the land has vested in the State and that the petitioners or the land owners have been divested of their possession, apart from reliance being placed on a notification under section 16(2) of the LA Act, there is no other material evidence forthcoming, not even the mahazar, to show that possession has been taken over. In the absence of which it cannot be presumed that possession has been taken by the State. Consequently, even the acquisition is deemed to have lapsed.

The petitions are therefore allowed. It is declared that the scheme has lapsed and the acquisition proceedings are set aside.