Munishamappa and Sathyanarayana vs The State Of Karnataka and Others

H.N. Nagamohan Das, J.—In this writ petition the Petitioners have prayed for a writ in the nature of certiorari to quash the preliminary notification dated 15.1.1978, final notification dated 8.3.1978, award dated 5.6.1979 and all subsequent proceedings and for other reliefs.

First Petitioner is the father of second Petitioner. Petitioners contend that in a family partition in the year 1950, first Petitioner got 1 Acre 2-1/2 guntas in Sy. No. 59/4 situated at Nagashettihally, Bangalore and morefully described in the petition schedule and hereinafter referred to as schedule property. Further in a family arrangement, Petitioners divided the schedule property among them. On 3.1.1977 the Bangalore Development Authority (for short ''the Authority'') issued a preliminary notification proposing to acquire certain lands including the schedule property for formation of a residential layout as "RMV II Stage Layout". Thereafter on 2.8.1978 a final notification was issued acquiring the schedule property and other lands. Though the final notification was issued on 2.8.1978, no award was passed, possession was not taken and on the other hand, Petitioners continued in possession of the schedule property. After lapse of more than 20 years, Respondents issued notification on 16.4.1996 u/s 48(1) of the Land Acquisition Act (for short ''the L.A. Act'') withdrawing the acquisition of schedule property and other lands. After denotification of the schedule property, Petitioners have paid betterment charges to the Bangalore City Corporation, khathas were made in their name, property taxes were paid, secured a plan and commenced the construction of a building. The Special Deputy Commissioner under the Urban Land Ceiling Act passed an order declaring that the provisions of Urban Land Ceiling Act are not applicable to the schedule property. When the construction of building was in progress, the Respondents threatened the Petitioners not to proceed with the construction and made an attempt to demolish the constructed portion. At that time, Petitioners filed W.P. No. 32491/1997 for a declaration that the Respondents have no authority in law to demolish or interfere with the Petitioners'' possession. This Court granted an interim order restraining the Respondents from demolishing existing structure and directed the Petitioners not to put up any further construction. In this W.P. No. 32491/1997 the Respondents entered appearance and filed statement of objections interalia contending that on 15.1.1978 a preliminary notification was issued proposing to acquire the schedule property and other lands for the benefit of fifth Respondent - Karnataka Diary Development Corporation (for short ''the Corporation''). Thereafter on 9.3.1978 a final notification was issued, on 5.6.1979 an award came to be passed and on 17.4.1978 the possession of the schedule property was delivered to the fifth Respondent. Thus, for the first time the Petitioners came to know about the acquisition proceedings for the benefit of fifth Respondent during the pendency of W.P. No. 32491/1997.

When the matter stood at that stage, the Petitioners also filed a civil suit in O.S. No. 2128/1998 for decree of permanent injunction against the Respondents. The Trial Court dismissed the application filed by the Petitioners for grant of temporary injunction. Further this Court in MFA 4085/1998 set-aside the order of Trial Court and granted an order of temporary injunction in favour of the Petitioners. Aggrieved by this order, the Respondents filed SLP No. 13159-13212/1999 before the Supreme Court. The same came to be disposed directing both the parties to maintain status-quo till the disposal of the suit. Petitioners, after coming to know about the acquisition proceedings of the year 1978 for the benefit of fifth Respondent, have filed the present petition questioning the impugned notifications.

Sri S.M. Chandrashekar, learned Counsel for the Petitioners contend that after the final notification on 24.2.1977 issued by the Authority for formation of "RMV II Stage Layout" u/s 19(1) of the Bangalore Development Authority Act (for short ''the BDA Act'') came to be vested with the Government. When the lands have vested with the Government, the impugned notifications acquiring the schedule properties for the benefit of fifth Respondent in the year 1978 are illegal and void-ab-initio. The impugned notifications are issued u/s 17 of the L.A. Act acquiring the schedule property and other lands. The adjacent land bearing Survey No. 60/4 and 60/1 of Nagashettihalli were also the subject matter of the impugned notifications. The land owners of sy. No. 60/4 and 60/1 questioned the impugned notification before this Court in W.P. Nos. 4695-4697/1978 learned single Judge of this Court vide order dated 11.10.1979 declared the impugned notification as illegal and quashed the same. Further a Division Bench of this Court in W.A. No. 363/1980 vide order dated 29.10.1980 confirmed the quashing of the impugned notifications but restricted to the extent of lands involved in those petitions. Therefore, it is contended that the impugned notifications are liable to be quashed. Though the impugned notifications came to be issued in the year 1978, the physical possession of the land in question continued to be with the Petitioners and they are not dispossessed by the Respondents. The material on record establishes that the Respondents have not taken the possession of the lands in question from the Petitioners in accordance with law. Reliance is placed on the following decisions:

(i) Nawabkhan Abbaskhan Vs. The State of Gujarat,

(ii) G. Jayaram Reddy Vs. State of Karnataka and Others,

(iii) WA. No. 1207/2007 DD ON 25.11.2008

Per contra, Sri Shanmukappa, learned Counsel for the sixth Respondent contends that the Petitioners had the knowledge of impugned notifications in the year 1978 itself. After lapse of 24 years Petitioners are before this Court questioning the acquisition proceedings and on the ground of delay and latches, the writ petition is liable to be dismissed. It is further contended that the Petitioners have not questioned the earlier notifications issued by the in the year 1977. After the acquisition proceedings in the year 1978-79 for the benefit of 6th Respondent, the Land Acquisition Officer had taken the possession and has delivered possession to the sixth Respondent on 17.4.1978. Right from the year 1978, the sixth Respondent is in possession of the schedule property and therefore at this length of time, the writ petition filed by the Petitioners is liable to be dismissed. The proceedings in W.P. Nos. 4695-4697/1978 and W.A. No. 363/1980 are confined to the lands involved in those writ petitions. Therefore, the Petitioners cannot take advantage of these orders. Reliance is placed on the following decisions:

i) Durga Prashad Vs. Chief Controller of Imports and Exports,

ii) Gulam Mustafa and Others Vs. The State of Maharashtra and Others,

iii) Mangal Oram and Others Vs. State of Orissa and Another,

iv) Govt. of A.P. and Another Vs. Syed Akbar,

v) (2005) 1 SCC 567 Haryana Urban Development Authority v. Nathu ram.

vi) AIR 2010 SCW 4507 Om Parkash v. Union of India

Heard arguments on both the side and perused the entire writ papers.

It is not in dispute that the land in question came to be acquired under the provisions of the B.D.A. Act for formation of RMV II Stage Layout under a preliminary notification dated 03.01.1977 published in the Karnataka Official Gazette on 21.02.1977 u/s 17 of the B.D.A. Act. When the acquisition proceedings under the provisions of the B.D.A. Act was in progress, the impugned preliminary notification came to be issued u/s 4(1) of the L.A. Act on 15.01.1978 proposing to acquire the land in question and other lands for the benefit of sixth Respondent - Corporation.

Further it is seen from the record that on 02.08.1978 a final notification u/s 19(1) of the B.D.A. Act came to be issued. Sub-section (3) of Section 19 of the B.D.A. Act specifies that the declaration under Sub-section (1) shall be conclusive evidence that the land is needed for public purpose and authority shall, upon the publication of the said declaration, proceed to execute the scheme. Therefore the land in question vested with the Authority when they issued a declaration u/s 19(1) of the B.D.A. Act on 02.08.1978 as per Annexure A. On vesting of the lands with the Authority, the Petitioners seized to be the owners of the land in question. The impugned notifications under the L.A. Act showing the name of Petitioners as owners of the schedule property are illegal and liable to be quashed.

As already stated the Respondents issued the impugned preliminary notification on 15.01.1978 u/s 17 of the L.A. Act by using emergency powers. It is only on issuing a notification u/s 16 of the L.A. Act the lands will vest with the Government. It was on 05.06.1979 the award came to be passed and Section 16 notification was not issued. Therefore the impugned notifications issued by the Respondents for the benefit of sixth Respondent when the lands have vested with the Authority are liable to be quashed.

It is seen from the record that on 16.04.1996 the Government issued a notification u/s 48(1) of the L.A. Act withdrawing the acquisition proceedings initiated under the provisions of the B.D.A. Act. By this notification u/s 48(1) of the L.A. Act the Authority seized to be the owner of the land in question and the same reverts back to the Petitioners who are the owners of the land. When the Petitioners became the owners of the lands in question in 1996 pursuant to the de-notification u/s 48(1) of the L.A. Act no fresh acquisition proceedings are initiated against them. Petitioners contend that even after the final notification u/s 19(1) of the B.D.A. Act the Petitioners continued in possession of the lands in question and the Authority has not taken possession from them.

Admittedly the Authority has not taken possession of the schedule property. After the de-notification u/s 48(1) of the L.A. Act in 1996 the Petitioners'' name came to be entered as kathedars, paid property taxes, secured sanctioned plan from the Bangalore City Corporation and commenced the construction. Further it is seen that the Special Deputy Commissioner for Urban Land Ceiling Act passed an order declaring that the lands in question are outside the purview of provisions of Urban Land Ceiling Act. This material on record discloses that the Petitioners continued in possession of the lands in question. In 1997 when the Respondents tried to prevent the Petitioners from proceeding with the construction activity, they approached this Court in W.P. No. 32491/1997 and this Court granted an interim order restraining the Respondent from demolishing the existing structure and directed the Petitioners not to put up any further construction. It is also seen from the record that the Petitioners filed a civil suit in O.S. No. 2123/1998 for grant of decree of permanent injunction. Since the Trial Court refused to grant an order of temporary injunction, the Petitioners approached this Court in M.P.A. No. 4085/1998 and this Court granted an order of temporary injunction in favour of the Petitioners. Thereafter the Supreme Court in SLP Nos. 13159-13212/1999 directed both the parties to maintain status-quo till the disposal of the suit in O.S. No. 2128/1998. Thus the Petitioners continued in possession of the schedule property.

On the other hand, the Respondents contend that on 15.04.1978 the Government took over the possession of the lands as per the Mahazar - Annexure R-5 and thereafter on 17.04.1978 the Government delivered possession of the property in question in favour of fifth Respondent as per the possession certificate dated 17.04.1978 - Annexure R-6. The alleged mahazar dated 15.04.1978 and the possession certificate dated 17.04.1978 are not followed by issuance of a notification u/s 16(1) of the L.A. Act. It is also seen that the alleged mahazar taking over possession on 15.04.1978 and inturn delivering the possession to fifth Respondent -Corporation on 17.04.1978 are earlier to the award dated 15.06.1979. Without passing an award it is not permissible for the Respondents to take possession of the lands in question. Therefore the alleged mahazar for having taken over the possession as per Annexure R-5 and the possession certificate as per Annexure R-6 are invalid documents. Even otherwise if the Respondents have taken possession in the year 1978 they have not placed any material to show that they exercised their right of ownership on the lands in question. In the absence of any such material on record I am of the considered opinion that the Respondents are not in possession of the lands in question. The alleged mahazar - Ex.R.5 and possession certificate Ex.R.6 are only on paper and actual physical possession of schedule property was not taken.

It is not in dispute that in respect of other lands acquired under the impugned notification in respect of lands in survey No. 60/4 and 60/1 this Court in W.P. Nos. 4695-4697/1978 vide order dated 11.10.1979 declared the notifications as illegal. Further it is not in dispute that a Division Bench of this Court in W.A. No. 363/1989 vide order dated 19.08.1988 confirmed the order of learned Single Judge quashing the impugned notifications and restricted to the extent of lands involved in those petitions. But the reasoning of the learned Single Judge and Division Bench to quash the impugned notifications in respect of lands in survey No. 60/4 and 60/1 are also applicable to the lands in question. Therefore the Petitioners are also entitled for the benefit of the reasoning in W.P. Nos. 4695-4697/1978. On this ground also the impugned notifications are liable to be quashed.

Learned Counsel for the Respondents contend that there is inordinate delay on the part of the Petitioners in approaching this Court and on this ground the writ petition is liable to be dismissed. I decline to accept this contention of the learned Counsel for the Respondents. When the schedule property vested with the Authority the impugned notifications are issued in the names of Petitioners. Without passing an award a mahazar is drawn for having taken the possession of the schedule property. Even after taking alleged possession, Section 16 notification was not issued. No evidence is placed for having undertaken any developmental works after the alleged mahazar. On the other hand Petitioners have produced material to show that they continued in possession and the same was protected by order of Courts. On coming to know about the impugned notifications, Petitioners are before this Court within a reasonable time. When the impugned notifications are void-ab-initio, the question of delay is not an impediment for this Court to quash the proceedings.

For the reasons stated above, the following;

ORDER

i. The writ petition is hereby allowed.

ii. The impugned notification dated 15.01.1978, 08.03.1978 and the award dated 05.06.1979 are hereby quashed.

iii. Ordered accordingly.