The Bangalore Development Authority vs K.P. Swamynathan and State of Karnataka

K.L. Manjunath, J.—The legality and correctness of the order passed by the learned Single Judge in Writ Petition No. 24138-139/2009 dated 21st August 2009 is called in question in these appeals. The appellant was the respondent No. 2 in the aforesaid writ petitions. Heard Sri Nanjunda Reddy, the learned senior counsel appearing for the Advocate for Bangalore Development Authority and Sri Jayakumar S. Patil, the learned senior counsel appearing for respondent No. 1 and the learned Government Advocate appearing for Respondent No. 2.

Facts leading to this appeal are as hereunder The writ petition came to be filed by the first respondent to declare that the acquisition proceedings initiated by the respondents for the formation of Hennur-Bellary Road first Stage Layout under Preliminary Notification dated 27th June 1978 and the Final Notification dated 9th January 1985 confined to Survey No. 13/1 and it has no effect of acquiring the land of the writ petitioner situated in Survey No. 13/3 measuring 2 acres 10 guntas of land or in the alternative to issue a Final Notification by rectifying the mistakes.

According to the writ petitioner, he is the owner of 2 acres 10 guntas of land situated in Survey No. 13/3 of Nagawara village. The same was purchased by his late father Ponnuswamy Maistry by a registered sale deed dated 13th July 1942. He died on 22nd November 1949. After his death, the mother of the petitioner Papamma sold the aforesaid property in favour of one Vadivelu under registered sale deed dated 27th July 1953. Again the said property was purchased by the writ petitioner and his brothers under registered sale deed dated 9th June 1966 and as such the petitioner has been in lawful and actual possession of the property. It is also the case of the writ petitioner that the land has been got converted from agriculture to non-agriculture purpose from Special Deputy Commissioner vide order dated 7th March 1992 and he has produced relevant revenue records to show how his father came to be the owner of Survey No. 13/3. According to him, the Bangalore Development Authority (hereinafter referred to as ''the BDA'' for short), has initiated acquisition proceedings only to acquire Survey No. 13/1 and Survey No. 13/2 measuring 1 acre 13 guntas belonging to one Sri M K Haji Mohammed Abdul Khader. Since the BDA tried to interfere with his possession, the petitioner and his brothers filed a suit for injunction in OS No. 7433 of 1998 contending that without acquiring survey No. 13/3, under the guise of acquisition of Survey No. 13/1, the BDA cannot lay any claim on the property of the appellant. Therefore, the writ petition came to be filed and it was contended by the BDA that though the preliminary notification and final notification reads as if that Survey No. 13/1 is acquired, actually it has acquired 16 acre 21 guntas in the entire survey No. 13 and that the petitioner has no right over the property and that there is no land in question in survey No. 13/1. According to the learned counsel, the entire survey No. 13 is a tank bed. He also contends that the order of conversion granted by the Special Deputy Commissioner has been cancelled.

The learned Single Judge, after hearing the learned counsel for the parties, came to the conclusion that the BDA has not acquired Survey No. 13/3 and what is acquired is Survey No. 13/1 and without acquiring Survey No. 13/3 belonging to the petitioner, cannot interfere with the property of the writ petitioner. Therefore, he allowed the writ petition holding that Survey No. 13/3 has not been acquired by the BDA and it cannot deprive the right of the petitioner in respect of this land and further ruled that what is acquired is the land in Survey No. 13/1 and such notification cannot have the effect of acquiring Survey No. 13/3.

Challenging the legality and correctness of the order passed by the learned Single Judge, these appeals are presented by the BDA. It is contended by Sri Nanjunda Reddy, the learned Senior Counsel appearing for BDA that the writ petition filed by the writ petitioner was not maintainable in view of the pendency of suit in OS No. 7433 of 1998 and that the learned Single Judge has also committed an error in granting relief to the writ petitioner under the guise of mistake crept in the acquisition notification mentioning only survey No. 13/1 instead of mentioning Survey No. 13 and he further submits that the learned Single Judge was required to dismiss the writ petition on the ground of delay and laches. He further contends that the entire survey No. 13 is a tank bed and there was no land of the petitioner and the vendor of the petitioner''s father had no title to convey the same.

On the contrary, Sri Jayakumar S. Patil, the learned senior counsel appearing for the respondent No. 1 submits that the writ petition filed by the petitioner cannot be non-suited on the ground of delay and laches, because what was acquired by the BDA as per preliminary notification and final notification is the land pertaining to Survey No. 13/1 and not survey No. 13/3. According to him, the entire Survey No. 13 was measuring 16 acre 21 guntas, out of which Survey No. 13/1 is the tank bed and Survey No. 13/2 measuring 1 acre 13 guntas belongs to a private person and that the petitioner is the owner of Survey No. 13/3 measuring 2 acre 10 guntas and that Survey No. 13/2 is measuring only 1 acre 38 guntas. He further contends that the measurement of Survey No. 13/1, 13/2 and 13/3 would totally measure in an extent of 16 acre 21 guntas. Therefore, under the guise of issuance of notification to acquire Survey No. 13/1 the BDA cannot be permitted to contend that what has been acquired is the entire extent of Survey No. 13, which includes survey No. 13/3. He further submits that mere filing of a suit for bare injunction will not come in the way of the writ petitioner to file a writ petition since the BDA is trying to contend that the notification issued for acquisition to Survey No. 13/1 is inclusive of Survey No. 13/3. In the circumstances, he requests the court to dismiss the appeals.

The learned Government Advocate was directed to secure the records. On perusal of the records, it is clear that the earlier Survey No. 13 was divided into 13/1, 13/2 and 13/3. It is not in dispute that the Survey No. 13/2 belongs to a third party and he is said to be in enjoyment of 1 acre 13 guntas by constructing a shopping complex there. This fact is not disputed by the BDA.

The appellant-BDA contends that issuance of notifications in regard to survey No. 13/1 is only a mistake and actually the entire survey number has been acquired, and therefore, the petitioner cannot be permitted to contend that his land was not acquired. But we cannot agree with the arguments advanced by the learned Senior Counsel for BDA, because, we could have appreciated the argument of the BDA provided the BDA also made the claim in respect of Survey No. 13/2. They are not contending that the land in Survey No. 13/2 which is in possession of the private party measuring 1 acre 13 guntas is also the subject matter of acquisition and that they are in possession of the said area. It is difficult for any Court to accept that what is notified for acquisition is entire survey No. 13 measuring 16 acres 21 guntas when the BDA is not laying any claim in respect of 1 acre 13 guntas of land in Survey No. 13/2. The logic of the BDA cannot be appreciated by any Court. In one breath it contends that the entire Survey Number 13 has been acquired and it is a tank bed. This court cannot understand as to how BDA or Government is not laying any claim in respect of 1 acre 13 guntas situated in Survey No. 13/2, which is under the enjoyment of a private person who has constructed a shopping complex. When Survey No. 13 is divided into 13/1, 13/2 and 13/3, and when survey No. 13/2 comes in between Survey No. 13/1 and 13/3, it is difficult for this Court to accept that the entire survey number was the tank bed and there is no sub-division of survey numbers in view of non-claiming of right by the BDA in respect of survey No. 13/2. The government has also not placed any material to show how survey numbers have been sub-divided into 13/1, 13/2 and 13/3 if it is a tank bed. On the contrary, the revenue records produced by the writ petitioner discloses the name of the petitioner as well as his father''s name and the vendor of his father. In all the revenue records the sub-division of Survey No. 13 has been mentioned. Therefore at this length of time the BDA cannot be permitted to contend that what is acquired is the entire extent of survey No. 13 and not Survey No. 13/1. Even if any mistake had crept in issuing the notification, it was for the authorities who have acquired the property to issue the notification by way of corrigendum within a reasonable time. Even according to the BDA, preliminary notification is dated 27th June 1978 and the Final notification is dated 9th January 1985 and the BDA is claiming that it is the absolute owner of the entire extent of survey Number 13 under the guise of issuance of notifications to acquire the land in survey number 13/1. In view of the same, we are of the view that the learned Single Judge has not committed any error in clarifying that the BDA cannot claim in excess of Survey No. 13/1 and deprive the valuable rights of the respondent-writ petitioner in Survey No. 13/3. In the result, these appeals are dismissed.