N. Nagaraju vs The Commissioner, Bangalore Development Authority, T. Chowdaiah Road Kumarapark West, Bangalore and The State of Karnataka

Ashok B. Hinchigeri

The petitioner has approached this Court when his construction work on the land, measuring 30 guntas at Sy.No. 19 of Vasanthapura Village, Uttarahalli Hobli, Bangalore South Taluk was disturbed by the officials of the respondent No. 1.

The facts of the case in brief are that the preliminary notification, dated 06.04.1989 and the final notification, dated 09.05.1994 were issued under Sections 17(1) and 19(1) respectively of the Bangalore Development Authority Act, 1976 (for short, ''BDA Act''), acquiring the land for the formation of Banashankari V Stage Layout. The notifications included 3 acres. 15 guntas at Sy.No. 19 of Vasanathapura village. The said land originally belong to one Lingegowda. In the partition in his family, the said property fell to the share of his son. Ramachandre Gowda. The petitioner purchased 30 guntas out of the said lands from the said Ramachandre Gowda on 18.02.2006. It is not in dispute that the petitioner has purchased the converted lands from agricultural to non-agricultural purpose. The conversion was granted on 03.06.1993, four years after the issuance of the preliminary notification and one year before the issuance of the final notification.

Sri Sadashiva Reddy, the learned counsel for the petitioner submits that the whole scheme itself has lapsed. He submits that out of 17] acres. 12 guntas of the lands situated in Vasanthapura village, in respect of which the final notification was issued, the possession of only 20 acres, 11 guntas is taken. He submits that it means that about 88% of the lands, in respect of which the acquisition notifications were issued, have remained unutilized. He submits that no award whosoever is passed and that therefore the question of taking the possession of the land in question has not arisen.

Sri Reddy also brings to my notice the order, dated 19.09.1996 passed by this Court in W.P.No.21975/1994 and other connected petitions, wherein the final notification was quashed on the ground of not taking the sanction for the scheme. He also brings to my notice the photographs at Annexures K1, K2, K3, K4, K5 and K6 depicting the existence of the massive buildings on the adjoining lands. The photographs are produced to buttress the submission that the BDA has not taken the possession of the adjoining areas and of the lands in question.

He also submits that the concerned local body namely, Subramanyapura Grama Panchayat, has accorded approval for the building plans on the lands in question. When the petitioner was constructing the choultry, the 1st respondent''s officials started obstructing him without the 1st respondent having any right in the lands in question.

He relies on this Court''s decision in the case of Meenakshi Thimmaiah and Others Vs. State of Karnataka and Another, in support of his submission that when the possession of the land has remained with the petitioner, mere publication of the notification u/s 16(2) of the Land Acquisition Act. 1894 docs not mean anything.

He has also relied on this Court''s judgment in the case of D. Narayanappa Vs. The State of Karnataka and Others, for advancing the contention that if the acquired land is not utilized for several years of the acquisition for the purposes for which it was acquired, it is to be held that the acquiring body or authority failed to exercise its lights over the land. In such a situation, the right of the landowner revives.

He has also relied on this Court''s decision in the case of Smt. Sharadamma and Others Vs. State of Karnataka and Others, for contending that if the authority fails to execute the scheme substantially within five years from the date of final notification, the scheme cannot but be held to have lapsed. It is a case of the negligence and dereliction of the duty on the part of the respondents leading to the non-implementation of the scheme.

Sri Narendra Gowda, the learned counsel for the respondent No. 1 submits that the petitioner has no locus-standi to challenge the acquisition proceedings, as admittedly he is the subsequent purchaser. He submits that the petitioner did not challenge the acquisition notification earlier, unlike the petitioners in W.P No.21975/1994 and connected petitions. He would therefore contend that no benefit of the order, dated 19.09.1996 passed by this Court in W.P.No.21975/1994 and other connected petitions can accrue to the petitioner.

Sri Narendra Gowda, on specifically asking submits that the award is passed on 28.08.2000 in respect of the land in question also. He submits that the possession of the land in question is taken on 29.12.1995. As the notification u/s 16(2) of the Land Acquisition Act is issued, it is a conclusive proof of taking over the possession, so contends Sri Narendra Gowda. Once the possession is taken, the question of withdrawing the land from acquisition would not arise. He submits that the 1st respondent has obtained the Government''s approval for the scheme on 12.09.1997 in respect of the lands covered by W.P.No.21975/1994 and other connected matters.

Sri Mallikarjunaiah, the learned Government Pleader appearing for the respondent No.2 submits that there is inordinate delay on the part of the petitioner in approaching this Court and that the delay has not been explained properly. Sri Mallikarjunaiah also submits that this petition is liable to be rejected on the short ground of locus-standi. The petitioner has purchased the property on 24.01.2006 when the acquisition notifications were issued and were intact.

The submissions of the learned counsel have received my thoughtful consideration.

This Court while examining the case under the Karnataka Housing Board Act, 1962 in the case of Chickrangaiah Vs. State of Karnataka and Others, has taken the considered view that the acquisition of land for the housing scheme is to be initiated only after the scheme is sanctioned by the Government. When the sanction itself is not obtained, it goes to the root of the matter. In W.P.No.21795/1994, this Court by its order, dated 19.09.1996 had quashed the final notification in so far as it pertains to the lands covered by those petitions. Even when the final notification is not sustainable in the absence of the Government''s approval for the scheme, I am disinclined to quash the acquisition notifications as the petitioner has raised the challenge to the notifications after 17 long years. The challenge to the acquisition notifications is rejected on the short ground of delay and laches.

On the ground of the petitioner purchasing the land after the issuance of the acquisition notification, the petitioner can not be unsuited. If the changes in the nature of the land and in the ownership of the property are impermissible after the issuance of the preliminary notification, as contended by the respondents, it is not known why the Government permitted the conversion of the lands from agricultural to non-agricultural purpose on 03.06.1993 after 4 years of the issuance of the preliminary notification. Having granted the conversion, after the issuance of the preliminary notification, the respondents can not resist this petition on the ground of change in the ownership or change in the nature of the land. The respondents are opposing this petition only on technical grounds.

The next question that is to be examined is whether the scheme itself has lapsed and consequently whether the acquisition stands abandoned. To answer this question, it is beneficial to refer to the provisions contained in Section 27 of the Bangalore Development Authority Act, 1976. They are extracted hereunder:

Authority to execute the scheme within five years - Where within a period of Jive years from the date of the publication in the Official Gazette of the declaration under sub-section (1) of Section 19, the authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative.

In the instant case, the final notification is issued on 09.05.1994. The final notification covers an extent measuring 171 acres, 12 guntas. Out of the said extent, the respondent claims to have taken the possession of only 20 acres. This means that there is no substantial execution of the scheme. If the respondents'' version is accepted on its face value, then also the scheme implementation is only in the region of about 12%. Further as is evident from the photograph in Annexure K series, the BDA has allowed the development of the surrounding properties by their respective khatedhars. Why the respondents have not taken the possession of the surrounding areas is not forthcoming.

As held by this Court in D. Narayanappa''s case (supra) if the acquiring body or authority failed to exercise its right over the acquired land for several years, the right of the landowner revives.

This Court in the case of B. Krishnappa vs. Bangalore Development Authority & Ors. in W.P.No. 1739/2008 disposed of on 13.07.2011 has also taken the considered view that if the BDA shows the lethargic attitude in the implementation of the scheme, its endeavours to cling on to the acquisition are only to be deprecated. In the said case, this Court has also come down heavily on the misadventure of the respondents to implement the scheme in truncated meagre extent, leaving out the larger area.

This Court also finds it hard to accept the submission of the respondents that the possession of the land is taken on 29.12.1995, because the award itself is passed on 28.08.2000. As the provisions of Section. 16 of the Land Acquisition Act are made applicable to the acquisition of the land under BDA Act by Section 36 of the BDA Act, taking possession of the laud and its vesting in the Government could be only after passing the award. Thus when the award itself was not passed as on 29.12.1995, the possession could not have been taken.

Yet another circumstance which cannot be ignored is that the respondents claim that the possession of the land is taken on 29.12.1995. It is not forthcoming as to why the Government took 14 years to publish its claimed act of taking the possession. The 16(2) notification is published only on 18.08.2009, though the Government claims to have taken the possession on 29.12.1995.

No explanation is forthcoming as to why the respondents took 6 years for passing the award after the issuance of the final notification. At every stage, what can be marked about the conduct of the respondents is the lethargy.

For all the aforesaid reasons, I hold that the scheme for the formation of Banashankari V Stage has lapsed in so far as it pertains to the land in question.

This petition is accordingly allowed. No order as to costs.