IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED...

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 14Th

DAY OF FEBRUARY 2014

BEFORE:

THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

WRIT PETITION Nos. 12962-12970 OF 2012 (LA-BDA)

BETWEEN:

1. Smt. Neelam Bashir,

Aged about 55 years,

Wife of H. Bashir,

2. Sri. Yasin Bashir,


Son of H. Bashir,

3. Sri. Gaffar Eqbal,


Son of Sri. H. Eqbal,

4. Sri. Hameed Eqbal,


Son of Sri. H. Eqbal,

5. Sri. Avesh Eqbal,


Son of H. Eqbal,

6. Sri. H. Rafiq,


Son of Late H. Habib,

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7. Smt. Saidabee,


Wife of Sri. H. Rafiq,

8. Sri. H. Salay Mohammed,


Son of Late H. Habib,

9. Smt. Imroza Salay Mohammed,


Wife of Sri. H. Salay Mohammed,

Petitioners No. 1 to 9 are

Residing at No.23, ‘A’ Cross,

Austin Town,

Bangalore – 560047.

All the petitioners 1 and 2 and 4 to 9

Are represented by their

Power of Attorney Holder/

3rd

petitioner, Sri. Gaffar Eqbal,


Son of Sri. H.Eqbal,

Residing at No.9,

C. Layout,

Bannimantap,

Mysore.

…PETITIONERS

(By Shri. K. Suman, Advocate )

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AND:

1. The Secretary,

Urban Development Department,

M.S.Building,

Dr. Ambedkar Veedhi,

Bangalore – 560 001.

2. The Bangalore Development Authority,

T. Chowdaiah Road,

Kumara Park West,

Bangalore – 560 020,

By its Secretary.

3. The Commissioner,

Bangalore Development Authority,

T. Chowdaiah Road,

Kumara Park West,


4. The Deputy Commissioner,


T. Chowdaiah Road,

Kumara Park West,


5. The Special Land Acquisition Officer,


T. Chowdaiah Road,

Kumara Park West,


…RESPONDENTS

(By Shri. D. Nagaraj, Additional Government Advocate for

Respondent No.1

Shri. C.R. Gopalaswamy, Advocate for Respondent Nos. 2 to 5)

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These Writ Petitions filed under Articles 226 and 227 of the

Constitution of India, praying to declare that the acquisition

proceedings in respect of the lands of the petitioners in Sy.No.250,

re-survey No.250/1, situated at Halage Voderahali Village,

Kengeri Hobli, Bangalore South Taluk, measuring 2 acres 24

guntas, including 5 guntas kharab, under preliminary notification

dated nil as published in the Karnataka Gazette dated 6.4.1989,

i.e., Annexure-A, as illegal and void ab-initio and etc;

These petitions, having been heard and reserved on

05.02.2014 and coming on for Pronouncement of Orders this day,

the Court delivered the following:-

O R D E R

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.

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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’x40’

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(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

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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.

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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

under Section 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,

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by way of writ petitions in WP 42797- 42799/2011. The said writ

petitions are said to have been allowed and the notification under

Section 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

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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

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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

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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.

3. 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

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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

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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,

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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 under Section 16(2) of the Land Acquisition

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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

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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.

4. 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

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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

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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.

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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.

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5. 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

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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.

6. 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

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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.

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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.

Sd/-

JUDGE

nv*

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED...

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