N. Nanjappa vs Bangalore Development Authority and Others

Ram Mohan Reddy, J.

The reliefs in these petitions are:

"a) Declare that acquisition proceedings pursuant to the impugned notification at Annexure -A bearing No. A3.PR511/SLAO/76-77 dated 3-1-1977 and impugned Notification at Annexure B bearing No. HUD 39 MNJ 78 dated 2.8.1978 issued by the respondents are illegal, arbitrary and have lapsed/abandoned by the respondent No. 1 in so far as the schedule property belonging to the petitioner is concerned and consequently quash the same by issue of a Writ of Certiorari or any other appropriate Writ or Direction as the case may be;

b) Quash the impugned Notifications at Annexure J bearing No. BDA/COMM/UK-1/CA Site/725/2014-15 dated 11-3-2015 and Annexure - K bearing No. BDA/COMM/UK-1/CA/01/2015-16 dated 4.4.2015 issued by the respondent No. 1-BDA by issue of a Writ of Certiorari or any other appropriate Writ or Direction as the case may be;

c) Grant such other reliefs that this Hon''ble Court deems fit to grant in the circumstances of the case."

The submission of Sri S.R. Krishna Kumar, learned counsel for the petitioner that a learned single Judge in Writ Petition No. 16074-100/2010 and connected petitions by order dated 2nd September 2011, recorded a finding that the scheme for formation of the layout known as ''RMV II Stage'' lapsed under Section 27 of the Bangalore Development Act, 1976, for short the ''BDA Act'', and therefore, the lands in question belonging to the petitioner, subject matter of acquisition for the very scheme, the notifications insofar as the lands in question are concerned, be held illegal, arbitrary and having lapsed/abandoned.

The Order of the learned single Judge, supra, does not declare the acquisition proceedings as illegal or arbitrary and therefore, no such declaration can be granted in favour of petitioner in respect of said acquisition notifications. It is no-doubt true that the learned single Judge stating Section 27 of the BDA Act having been attracted deserved thus:- "BDA is not at liberty to pursue further action for acquisition either by taking possession or even for passing an award or any such related action." (para-59) So also at paragraph-61, the learned single Judge observed thus:

"...........the inevitable conclusion being section 27 of the BDA Act operates and therefore further action for either taking possession of the land or for affecting such persons cannot be permitted and even the legal position as noticed by this court in WP Nos. 38101 of 2010 and connected matters disposed of on 27.07.2011, being that even a land notified for acquisition has already vested in the State, but thereafter the scheme lapses, it does not result in an automatic divesting of the land is the position noticed by the supreme court even in OFFSHORE HOLDINGS PRIVATE LIMITED case (supra), but implementation of the scheme being not possible any further because the scheme has lapsed, assuming that in some cases the land had vested in, the State Government which depends upon the factual situation, it will be necessary for the State or the BDA in such an event to take possession of the subject land in a manner known to law but not by resorting to any coercive or arbitrary method by using their JCBs and bulldozers, but seek for recovery of possession only before a civil court based on their title if they are able to make good their case before the civil court and therefore notices issued under section 33 of the BDA Act cannot be sustained and are all quashed by issue of writ of certiorari."

(emphasis supplied)

In the light of the aforesaid observations of the learned single Judge, which judgment, if as submitted by learned counsel for the parties that a Division Bench has directed maintaining status-quo, there is no necessity to reiterate the said observation once over so as to pass yet any order to say the that scheme has lapsed. It must be noticed, at this stage, that the scheme was in respect of large tracts of land which include the land of the petitioner as well and if that is so, each of the land loser need not come rushing to this court seeking orders to declare the scheme as lapsed in respect of their properties. Petitioner must await the result of the Appeal before the Division Bench and therefore, instituting these petitions for the said relief is unnecessary.

Learned counsel points to the order dated 23rd January 2014 in Writ Petition 2206-2208/2013 in the case of M. Venkatesh and others v. Bangalore Development Authority, in which, the learned single Judge having followed the decision in Srinath Hegde''s case allowed the petitions insofar as it relates to the petitioners therein. According to learned counsel, the writ petitioners therein namely M. Venkatesh and M. Srinivas are cousins of the petitioners herein and the properties in question are part and parcel of the same survey number and therefore, this Court pass an order identical to the order dated 23rd January 2014.

The said submission, insofar as it relates to the relationship of petitioners in the two writ petitions, borders around a questions of fact the determination of which is of no consequence in these petitions. The point is whether this court should simply follow what has been done in M.Venkatesh''s case. At the threshold, it must be pointed out that the learned Judge did not examine the various observations noticed supra in Srinath Hegde''s case. If brought to the notice of the learned Judge perhaps a different view was possible. In the absence of consideration of relevant observation in the decision in Srinivas Hegde''s case by the learned Judge in the order dated 23rd January, 2014, does neither operate as a legal precedent nor as judicial discipline to be followed in the facts and circumstances of this case.

The next submission of the learned counsel that judicial discipline must be maintained since a coordinate single Judge has taken such a view, with great respect to the learned Judge who passed the order in M. Venkatesh''s case having not noticed relevant observations or perhaps not brought to His notice, in Srinath Hegde''s case, it is needless to observe that the submission is without merit.

There is considerable force in the submission of the learned counsel that BDA having failed in its efforts to obtain an order of injunction in respect of the immovable property in question though instituted O.S.2070/2013 and thereafterwards, MFA 6512/2014, whence injunction was declined, thus acquiescing in the fact that the petitioner is in possession of the land in question, has no authority to issue notifications dated 11.3.2015, Annexure-J and the corrigendum dated 4.4.2015, Annexure-K, offering the said site as CA site for allotment and inviting applications from public.

Learned counsel for the BDA was unable to justify the action of issuing the notification and the corrigendum in the light of fact that admittedly it is not in possession of the property in question.

In the circumstances, there is a need to interfere with the notification Annexure-J and corrigendum Annexure-K only in so far as it relates to the land in question.

In the result, these petitions are allowed in part. Relief to declare as illegal the preliminary and final notifications stands rejected, while notification Annexure-J and corrigendum Annexure-K notifying the schedule property as CA site inviting application for allotment, are quashed.