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Judgment
Anand Byrareddy, J.—The petitioners claim to be absolute owners of lands bearing Survey No. 250, Re-survey No. 250/1 of Halage village, Kengeri Hobli, Bangalore South Taluk, measuring 2 acres 24 guntas, including 5 guntas kharab. It is claimed that one Bashir, the husband of the first petitioner and the father of the second petitioner had purchased the property under a Sale deed dated 8.2.1989. It is claimed that there was a partition in the family, and the said property also came to be shared by family members of the husband of the first petitioner, namely, petitioners 3, 4, 5, 6,7 and 8.
It is stated that the lands however, came to be notified for acquisition for the formation of the Banashankari V Stage layout, under the provisions of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the ''BDA Act'' for brevity) vide notification dated 6.4.1989. It is stated that though the name of Bashir, the husband of the petitioner No. 1 was shown as the owner in the revenue records at the time of the notification, his name was not to be found in the notification, as against the lands proposed to be acquired. It is thereafter a final notification dated 9.5.1994 is said to have been issued.
The petitioners claim that as they remained unaware of the acquisition proceedings, they had put up several structures on the land in question during the year 1995-96. The structures which continued to exist till the same were demolished by the BDA, as stated hereinafter, are said to be as follows:
(a) Residential house with RCC roofing measuring 30'' x 40''
(b) ACC Sheet houses - 5 Nos. each measuring 10'' x 10'', 10'' x 10'', 10'' x 12'', 12'' x 10'' and 15'' x 40''.
(c) RCC residential house 10'' x 10'' - 1 No.
(d) 1 Shop with RCC roofing measuring 12'' x 60''
(e) Another property measuring 40 '' x 60'' earmarked with a compound wall comprises of a house measuring 30'' x 25'' with RCC roofing.
(f) Car Garage measuring 12'' x 12''
(g) Pump House with Borewell - 1.
It is claimed that it was only in the year 1997 that, after learning about the acquisition, that the said Bashir, along with the petitioners, had filed a writ petition, in WP 7743/1997, before this court - questioning the acquisition proceedings. The same is said to have been dismissed by an order dated 27.2.1998. As against the said order, an appeal is said to have been filed in WA 5061/1998. The said appeal is stated to have been disposed of summarily in terms of a judgment in WA 4928-4950/1998, dated 24.3.1999.
It is stated that by virtue of the said judgment, the BDA was required to consider the objections filed by various land owners afresh and was required to decide on whether a modified Scheme was required to be sent to the government, notwithstanding the final notification.
It is claimed that in view of several other orders passed in other writ petitions of land owners, the BDA had, after considering representations made by several land owners, a fresh final notification dated 16.9.1997 came to be issued. It is contended that the lands of the petitioners did not find place in the said notification.
Pursuant to the judgment in WA 4950/1998, the government is said to have issued yet another final notification dated 7.10.1999. Even this notification, it is claimed, did not include the lands of the petitioners.
However, in the year 2006, the BDA is said to have forcibly demolished the structures aforesaid on the lands, on the pretext that the acquisition proceedings had attained finality and that the State had taken possession of the lands much earlier, and that the petitioners were trespassers. It is however, the case of the petitioners that the petitioners had never been issued any notice of any proceedings and the purported documents, on the basis of which, possession is said to have been taken, are invalid and cannot sustain the claim of lawful proceedings having been taken in respect of the acquisition.
It is further stated that land bearing Survey No. 251, of Halage Voderahalli, which is adjacent to the lands of the petitioner, is said to have been the subject matter of a notification u/s 48(1) of the Land Acquisition Act, 1894, whereby the State has withdrawn from the acquisition proceedings, vide notification dated 12.1.2010. The State Government, however, having withdrawn that notification by a further notification dated 4.11.2011, the land owners are said to have challenged the same, by way of writ petitions in WP 42797-42799/2011. The said writ petitions are said to have been allowed and the notification u/s 48(1) of the LA Act is said to have been upheld.
It is contended that it is evident that as far as the lands of the petitioners are concerned, the passing of the award or the drawing up of such illegal and hollow mahazars by the Revenue Inspector, without the authority of law, is a farce and that BDA has not taken possession of the property, much less implemented the Scheme insofar as the lands of the petitioners are concerned. To the knowledge of the petitioners, it is claimed that the award amount has not been deposited in the Civil Court nor any compensation amount disbursed to anybody by the BDA in respect of the acquisition of the lands of the petitioners'' property.
It is contended that the de-notification has been done by the BDA to an extent of more than 250 acres, against a total extent of 1851 acres 39 guntas sought to be acquired under the preliminary notification dated 29.12.1988 and published in the Gazette on 16.4.1989. The first final notification dated 09.05.1984, gazetted on 18.05.1994 was only in respect of 1458 acres 21 guntas for the formation of Banashankari V Stage Layout, which was quashed by this Court and the acquisition ultimately has been diluted to only an extent of about 784 acres totally as per the final notification dated 16.09.1997. Thereafter, even this final notification has been further modified and the acquisition has been further reduced under the third final notification dated 07.10.1999. From out of this, even according to the BDA, they are said to have taken possession only to an extent of 400 acres 15 guntas and from out of this, 213 acres and 2.5 guntas have been de-notified. In response to a query raised by the petitioners under the Right to Information Act, 2005, it is admitted that 213 acres and 2.5 guntas have been de-notified. It is hence contended that it is ex-facie evident that there is no implementation of the Scheme much less substantial implementation of the Scheme, be it as mooted in the original scheme formulated by the Government or under the subsequent scheme said to have been accorded administrative approval on 12.03.1987. Either way, the lands of the petitioners are not included in that final notification. If that were to be so, the question of the lands of the petitioners being included in any approved Scheme of the BDA does not arise. However, the petitioners have been threatened time and again by the BDA by making it appear as if, the lands of the petitioners were already acquired under the final notification dated 9.5.1984.
It is contended that in so far as the petitioners'' lands are concerned, after the BDA had illegally demolished the structures on the lands, had sought to auction the lands, which was questioned by the petitioners in a writ petition in WP 2824/2007, it is said that there was an interim order of stay granted therein, restraining BDA from auctioning the property. The BDA is then said to have filed a memo that it would not pursue the acquisition proceedings, in the said petition. In the wake of which, the petition was said to have been dismissed as not surviving for consideration. The petitioners were, therefore, said to have been reassured that there would be no further interference by the BDA in respect of the lands. However, in March 2012, the petitioners, who are said to be residents of Mysore, had on a casual visit to the lands, noticed hectic activity on the lands by the BDA and its men, proposing to commence certain construction activity, it is that circumstance, which has prompted the petitioners to file the present petition.
The learned counsel for the petitioners would contend that the lands of the petitioners do not form the subject matter of the second final notification dated 16.9.1997 or the third final notification dated 7.10.1999. The lands of the petitioners have evidently not been acquired by the BDA or Government. In this view of the matter, the action of the BDA in attempting to put up construction illegally in the lands of the petitioners or their earlier attempts to auction the property, are illegal and without the authority of law.
It is further contended that a Division Bench of this Court in W.A. No. 5091/1998 dated 28.07.1999, has disposed of the writ appeal filed by the petitioners and Bashir as per the judgment in W.A. No. 4928-4950/1988 and the acquisition relating to the lands of the petitioners vide final notification dated 9.5.1994 has been quashed on the ground that the objections or representation given by the petitioners are not properly considered by the BDA. This aspect is emphatically admitted by the Government and the BDA in the final notification dated 07.10.1999, which reads as under:
Final Notification
The Preliminary Notification vide No. BDA/SLAO/A1/324/88-89 dated: 29.12.88 for formation of the layout called "Banashankari V Stage Layout" was published in the Karnataka Gazette dated 8.4.1989 in (Page 305 to 328 Part III). Government have sanctioned the scheme u/s. 18(3) of Bangalore Development Act 1976 vide Government Order No. UDD 434 MNX 97 dated 12.9.1997 for the formation of Banashankari V Stage Layout.
The Hon''ble High Court in its Order dated 31.8.1998 in Writ Petition No. 33717-18/97 etc and in order dated 24.3.99 passed in W.A. No. 4928-50/1998 etc., have quashed some lands notified vide Final Notification No. HUD 127 MNX 94 dated 9.5.1994 and F.N. No. UD 436 MNX 97, dated 17.9.1997 on the ground that the objections/representations are not properly considered by the Bangalore Development Authority and reserved the liberty to Government to issues fresh declaration after considering the objections filed by the Writ Petitioners. Further the Hon''ble High Court has directed to modify the scheme if necessary. These aspects have been examined and considered and decided to issue fresh declaration for the lands mentioned in the schedule. Further it was decided that there is no necessity to introduce any modification to. the scheme already sanctioned by the Government vide No. UDD 434 MNX 97 dated 12.9.1997.
Now, therefore, in exercise of the powers conferred under Sub-section (1) of Section 19 of the Bangalore Development Authority Act 1976 (Karnataka Act No. 12 of 1976). The Government of Karnataka hereby declares that the lands notified in the schedule noted below be the same a little more or less are needed for public purpose i.e. for the formation of layout called "Banashankari V Stage" and in exercise of the power conferred by Clause (c) of Section 3 and Section 7 of the Land Acquisition Act 1894 (Central Act-1, of 1894) as amended and extended from time to time by the Land Acquisition (Karnataka Extension and Amendment) Act 1961 (Karnataka Act 17 of 1961) read with Section 36 of B.D.A. Act 1976 the Special Land Acquisition Officer of the Bangalore Development Authority, Bangalore, is hereby appointed to perform the function of the Deputy Commissioner under the Land Acquisition Act and directed to take order for acquisition of lands.
A plan of the lands is kept in the office of the Special Land Acquisition Officer, B.D.A., Bangalore for information.
It is contended that the petitioners have drawn attention to the contents of the above final notification dated 7.10.1999, only to point out to this Court that the BDA has specifically admitted that the final notification, has been quashed as per the order passed in W.A. No. 4928-50/1998 and that they have re-examined, considered and decided the issue afresh and thereafter they have proposed to re-acquire the said lands as notified in the present final notification which, prominently, did not include the lands of the petitioners. Therefore, when the acquisition relating to the lands of the petitioners under the final notification dated 9.5.1994 has been quashed and when the lands of the petitioners do not form the subject matter of the final notification dated 7.10.1999 issued by the Government or the BDA in pursuance of the direction of this Court in W.A. 5061/1998 dated 28.07.1999, it follows as a necessary corollary that the lands of the petitioners have not been acquired and therefore, the action of the BDA is grossly without the authority of law and jurisdiction and they do not have a semblance of a right to the petition schedule property.
It is further contended that in so far as the petitioners'' land is concerned, possession has not been taken over by the BDA much less legally or lawfully by drawing up a proper Mahazar on the spot and physically taking possession. That apart, there is no notification issued u/s 16(2) of the Land Acquisition Act, 1894. The Mahazar, if any, sought to be drawn, is by a Revenue Inspector and obviously, as has been the routine, some strange signatures said to be those of villagers, without any particulars, would be vaguely found in any such Mahazar prepared in the office of the BDA, to falsely claim that BDA has taken possession. Moreover, when the lands of the petitioners do not form the subject matter of any final notification legally or factually, the question of the BDA passing any award or claiming that they have taken possession of the said lands, does not arise.
It is contended that when the BDA has done nothing in the matter nor have they prepared a plan for formation of sites or otherwise in relation to the land of the petitioners within a period of 5 years from the date of final declaration, the BDA could not have taken possession of the land and that either way, the acquisition proceedings have lapsed automatically on account of the abandonment of the Scheme for more than a decade by the BDA in respect of the land of the petitioner. The BDA has failed to exercise its right over the land. The right of the petitioners revive. This valuable statutory right of the petitioners cannot be trampled upon by the respondents. The acquisition proceedings in respect of the land of the petitioners require to be accordingly declared as having been lapsed or abandoned.
It is hence claimed that the petition be allowed as prayed for.
Per contra, it is contended on behalf of the BDA that as on the date of Preliminary Notification, the land in Survey No. 250 of Halagevaderahalli Village stood in the names of Shri. T.M. Chandrashekhar, Smt. T. Meenakshamma and Smt. Janakamma, respectively, as per the revenue records. Therefore, it is up to the petitioners to establish their right over the property.
It is pointed out that the petitioners claiming under one Bashir, have stated that the lands were said to have been purchased on 8.2.1989, where as the Preliminary notification was issued on 6.4.1989. Hence, it was evident that the records did not reflect the name of Bashir as the owner of the lands.
It is further contended that the earliest petition filed by the petitioners, in WP 7743/1997 having been dismissed on 27.2.1998, the petitioners are precluded from raising the same grounds in the present petition. In so far as the petitioners seeking to draw sustenance from the fact that the Writ Appeals filed by the petitioners were disposed of in WA 4928-50/1998, would have no bearing in so far as the petitioners were concerned, for the simple reason that there was no representation pending consideration with the BDA, as was the case in respect of the appellants in WA 4928-50/1998, nor was any representation made by the petitioners subsequently to be considered. On the other hand, the judgment in the petitioners'' appeal was merely an order of dismissal, affirming the order of dismissal in the petition.
It is further contended that the claim of the petitioners that a fresh final notification was issued in respect of the entire lands proposed for acquisition is incorrect. The correct position is that some of the land owners having challenged the acquisition proceedings, their petitions had been allowed, requiring the respondents to re-do the proceedings by issuing a fresh notification, only in so far as their lands were concerned. Accordingly, the BDA is said to have given opportunity to particular land owners to submit their representations and after consideration, the said representations were rejected. Thereafter, the BDA is said to have issued fresh final notification after obtaining proper sanction so far as it relates to particular land only. Therefore, the contention of the petitioners that their lands are not included in the Final Notification is misleading and misconceived.
The allegations as regards possession of the lands not having been taken etc., are denied and it is highlighted that even according to the petitioners the BDA had demolished the structures on the property in the year 2006 itself. It is hence inexplicable that the petitioners have thought it fit to approach this court only by recourse to this petition in the year 2012.
It is claimed that it is proposed by the BDA to construct a Affordable Housing for Economically Weaker Sections (E.W.S.) and commercial block at Halagevaderahalli in Survey No. 250. It is claimed that tenders were invited and the construction was said to have been entrusted to one M/s. Gowri Infra Engineers Private Limited and in this regard, an agreement was also entered into on 9.11.2011. As per the accepted tender, the cost of the construction is Rs. 27.91 crore. In this regard, a work order was issued to the contractors. It is claimed that construction work has progressed substantially. Though by virtue of the interim order of status quo passed by this Court, the construction work had been stalled. It is however contended that by virtue of the interim order having been vacated, permitting the BDA to proceed with the construction work, the proposed quarters have been fully constructed and are ready for occupation. It is hence contended that the petition be dismissed.
By way of reply, the learned counsel for the petitioner would reiterate that the possession of the land was never taken in accordance with the law. On the other hand the BDA has admittedly abandoned the implementation of the Scheme as originally envisaged in the formation of the layout. The large extent of land sought to be acquired was whittled down to the extent of the petitioners lands only. It is therefore claimed that the BDA has failed to substantially implement the Scheme and hence the rigour of Section 27 is attracted and the Scheme lapses.
It is also contended that even assuming possession was taken and in furtherance of the acquisition, construction has been made of certain quarters, it would be for the BDA to demonstrate whether the construction of quarters for the economically weaker section of society was envisaged in the Scheme pursuant to which the acquisition was initiated. If it was not, it is for the BDA to then satisfy this court that the modification of the Scheme was in accordance with Section 19 of the BDA Act. As no material is produced to substantiate that the change in its plans was in accordance with law - the utilization of the lands of the petitioner is rendered illegal and void. It is also pointed out that the interim order restraining the BDA from putting up construction was vacated and the BDA was permitted to proceed with the construction at its peril. It is hence not open to the BDA to plead equity on the ground that it has now completed the construction of buildings on the petitioners'' lands and hence should be regularized even if the same is illegal and unauthorized.
It is hence contended that the petition be allowed as prayed for.
From the above facts and circumstances, it would not be necessary to address the several contentions raised by the parties. As the petition is liable to be disposed of on a glaring circumstance pointed out by the petitioner. It is not in dispute that the acquisition proceedings were initiated pursuant to a Scheme for the formation of the Banashankari V Stage Layout. There is no assertion on behalf of the respondents that the same has been implemented. It is however stated that the land of the petitioners has been utilised for the construction of Quarters for the Economically Weaker Section of Society, consisting of multi-storeyed blocks of buildings. This is not claimed to be part of the Scheme for formation of the Banashankari V Stage Layout or an improvement thereof. It is apparently an entirely independent project implemented over land purportedly acquired under the aforesaid Scheme.
Assuming that the Scheme pertaining to Banashankari V Stage Layout was duly sanctioned - Section 19 of the BDA Act would permit alteration of the Scheme if an improvement could be made in any part of the Scheme. However, the present situation would indicate that the BDA has utilised the land for an entirely independent project, while restricting the acquisition to the extent of the petitioners'' lands. This would be wholly without authority of law. Viewed from that point of view, the acquisition proceedings stand vitiated. Delay and laches are not relevant having regard to the changed circumstances.
It is also to be seen that the BDA has plunged ahead with the project and erected building even during the pendency of this petition - unconscious of its folly or may be even brash indifference as to the consequences if any. As any consequent loss is borne by the public exchequer.
It is not in doubt that the petitions, however, would succeed in the light of the above infirmity and are accordingly allowed. The acquisition proceedings in so far as the petitioners'' lands in terms of the impugned annexures are concerned, are quashed. The respondents are directed to put the petitioners in possession of lands of similar nature and extent as were the subject matter of acquisition.