Muniswamy vs State of Karnataka and another

Anand Byrareddy, J.—Heard the learned Senior Advocate Shri. Udaya Holla appearing for the petitioner and the learned counsel appearing for the respondent - BDA. The petitioner claims that a portion of the land bearing Sy. No.87 of Nagarbhavi village measuring 5 acres 16 guntas was acquired by the family of the petitioner under a sale deed dated 2.7.1965, namely in the name of the petitioner�s father. It however transpires that the property stood in the vendor�s name under a Partition Deed as on 25.08.1972 which is a registered document and the petitioner was allotted the schedule property which is the subject matter of this petition. It transpires that the Bangalore Development Authority (BDA) had sought to acquire several lands including the above said land bearing Sy. No.87/2 under a preliminary notification dated 12.08.1982 and a final notification dated 16.08.1985. It transpires that the land of the petitioner did not figure in the said final notification. However, a second final notification was said to have been issued as on 9.1.1986, pursuant to the very same preliminary notification referred to above, and the petitioner�s father was shown as the kathedar. The petitioner, on coming to know of the acquisition proceedings, had claimed that he belonged to a depressed class and that he had grown coconut and teakwood trees and that there was also a nursery and sought that his land be spared from acquisition proceedings. Though the same was not considered, the petitioner is said to have continued in possession of the property. Thereafter, an award is said to have been passed on 28.11.1986 in the name of the petitioner�s father who had died by then and then, the petitioner however continued in possession. The respondents, according to the learned counsel for the petitioner, have not taken any steps to dispossess the petitioner, but have mechanically sought to issue a notification under Section 16(2) of the Land Acquisition Act, 1894 (hereinafter referred to as �the LA Act�, for brevity), as if possession had been taken. It is in the above background when the petitioner was said to be disturbed forcibly from the property, the present petition was filed.

The learned Senior Advocate would submit that the scheme under which the acquisition proceedings were initiated has never been substantially implemented and the petitioner has continued in possession. He has not received any compensation in respect of the land in question and in view of the long lapse of time in the respondents not having implemented the scheme and formed the layout over the petitioner�s land, not only the scheme has lapsed under Section 27 of the Bangalore Development Authority Act, 1976 (hereinafter referred to as �the BDA Act�, for brevity), but with the coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as �the 2013 Act�, for brevity), the very acquisition would lapse under Section 24(2).

Whereas, the learned counsel for the BDA has vehemently opposed the present petition and would submit that it is incorrect on the part of the petitioner to claim that the scheme has not been substantially implemented nor that possession of the land has not been taken. The possession having been taken, is evidenced by the mahazar and the notification under Section 16(2) of the LA Act which is the only manner known to law where possession having been taken can be demonstrated. Secondly, it is also pointed out that more than 100 sites have been formed in the land bearing Sy.No.87. part of which is sought to be claimed. In the petitioner. Therefore, third party interests have also been created by allotment of such sites formed over the said land. Hence, the petitioner�s claim that possession has not been taken or compensation has not been paid, is a misleading statement and would not enable the petitioner to claim that the scheme having lapsed or the acquisition itself having lapsed.

On the other hand, a Division Bench of this Court in the case of A. Krishnamurthy (since deceased) by LRs v. BDA & others, 1996 (3) KLJ 506, has laid down that a declaration being sought as to the scheme having lapsed would have to be sought for at the earliest point of time, namely, immediately after the lapse of five years from the date of the final notification Since this petition is filed in the year 2014 much after the scheme has purportedly lapsed, according to the petitioner, the petition would have to be dismissed as being barred by delay and laches and hence, even if the scheme has lapsed, the acquisition would not and since possession has been taken, the petitioner is nothing a position to claim any relief and would seek to rest his case on the fact that more than 100 sites have been formed and allotted to third parties and hence, there is no relief that can be granted to the petitioner.

It is indeed true that if the scheme has lapsed several decades ago, it would not he possible for the petitioner to claim a declaration that the scheme has lapsed after such delay, as laid down by the Division Bench of this Court. Further, even if the scheme has lapsed, the acquisition would not, is the law laid down by the Supreme Court in Offshore Holdings Private Limited v. BDA & others (2011)3 SCC 139.

However, this would hinge on the circumstances whether physical possession has been taken. Hence, in the present case on hand, it would be incumbent on the BDA to prove that physical possession of the land has been taken. To evidence this circumstance, the BDA has produced a mahazar which is at Annexure- "R4" and a perusal of Annexure "R4" dated 29.12.1986 would indicate that it is a standard printed form with blanks filled in. In that, the BDA in several cases before this Court, has sought to place reliance on such documents. It indicates that there were five persons present when the alleged possession was taken. It is not clear whether those five persons have affixed their signatures or their names have been written. However, the names can certainly be read. There is one Dhamappa, Sanjeevappa, Venkatarayappa, Yadav Kumar and Ramanna. These persons are not shown to be the representatives of the owner of the land. The owner of the land is significantly absent and the addresses of these persons nor their age or parentage is not indicated. In other words, if the BDA is called upon to establish the said document, it would certainly require the BDA to examine the persons who were present as witnesses. In the absence of their clear identity, this would be well-nigh impossible for the BDA to establish the said circumstance to the satisfaction of this court. Hence, the said document cannot be accepted by this Court, for the reason that when valuable property is sought to be divested from a land owner, it would require a much more honourable document to be executed to establish that he was divested of the property under due process of law. For otherwise, the document would have to be characterised as a nebulous document which is prepared for convenience. Accordingly, the same is negated.

The issuance of a notification under Section 16(2) of the LA Act would also have no significance, since it flows from the fact of having taken possession in terms of Annexure-R4, which cannot be accepted. Therefore, the issuance of a notification under Section 16(2) of the LA Act, cannot also have any significance. The contention that this is the manner that the law requires possession to be taken, is hence a statement which cannot be accepted.

Further, the additional documents now produced by the BDA to show that the land has been formed into sites and that it has been allotted to third parties as per a list furnished, would indicate that there are a large number of sites which are not allotted and have remained vacant. On repeated questioning, the learned counsel for the BDA is unable to pinpoint the sites which have actually been formed over the land in question and he would generally state that 37 sites have been formed over the entire land bearing Sy.No.87. This cannot be accepted. On the other hand, the petitioner has produced several photographs to indicate that pacca buildings have been constructed and they even look posh over the property. It is also on record that the BDA in a report as regards the status of the land has indicated that it is not only built up but there are also coconut and teak garden and it is fenced. This would endorse the claim of the petitioner. Therefore, there is no substance in the defence raised by the BDA. There is no denial of these photographs by the BDA in its statement of objections. Consequently, the possession having been taken by the BDA in respect of the land in question, is highly doubtful. Therefore, not only the scheme has lapsed and even if the petition is barred by delay and laches insofar as the declaration to that effect is concerned, the acquisition has certainly lapsed though physical possession has not been shown to have been taken over the land in question. Apart from buildings indicated in the photograph, there is also a garden, in support of which photographs are produced, which has not been denied by the BDA. Consequently, the petition is allowed. The acquisition proceedings insofar as the petitioner�s land is concerned stand quashed.