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WP 9302/2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 17TH DAY OF AUGUST, 2017

BEFORE

THE HON’BLE MR.JUSTICE B.S.PATIL

W.P.No.9302/2016 (LA-BDA)

BETWEEN:

1. Smt. Rajalakshmi,

W/o late Vasanth Kumar.V.,

Aged about 68 years.

2. Parthasarthy.V.,

S/o late Vasanth Kumar,


3. Prasanna Kumar.V.,



4. Madhusudhan.V.,



5. Murali.V.,



All are r/at Vasanthpura,

Uttarahalli Hobli,

Bengaluru South Taluk – 560 061. ..PETITIONERS

(By Sri P.S.Rajagopal, Sr. Counsel for

Sri B.M.Irshad Ahmed, Adv.)

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AND:

1. The State of Karnataka,

Represented by its Principal Secretary,

Urban Development Department,

Vikas Soudha,

Bangalore – 560 001.

2. The Commissioner,

Bangalore Development Authority,

Chowdaiah Road,

Kumara Park East,

Bangalore – 560 020.

3. The Special Land Acquisition Officer,

Bangalore Development Authority,

Chowdaiah Road,

Kumara Park East,

Bangalore – 560 020. ..RESPONDENTS

(By Sri Vijayakumar A.Patil, AGA for R-1;

Sri M.N.Ramanjaneya Gowda, Adv. for R-2 & R-3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227

OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT

THE ACQUISITION PROCEEDINGS IN RESPECT OF THE SCHEDULE

PROERPTY BELONGING TO THE PETITIONERS INSTITUTED UNDER

PRELIMINARY NOTIFICATION VIDE ANNEXURE-D AND FINAL

NOTIFICATION DATED 07.10.1999 VIDE ANNEXURE-e NOTIFIED

FOR FORMATION OF BANASHANKARI V STAGE IS DEEMED TO

HAVE LAPSED AND BECOME INOPERATIVE & ETC.

THIS PETITION HAVING BEEN HEARD AND RESERVED FOR

ORDERS ON 26.07.2017, COMING ON FOR ‘PRONOUNCEMENT OF

ORDER’, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER 1. Petitioners claim to be absolute owners of land

measuring 5 acres 14 guntas comprised in Sy. No.3 of

Bikasipura village, Uttarahalli Hobli, Bengaluru South

Taluk. Original owner was one Vasanth Kumar. Upon his

death on 30.03.2011, petitioners have succeeded to the

same as his legal representatives. Petitioners claimed to be

in actual and physical possession of the schedule property.

The record of rights in respect of the schedule property

stood in the name of Vasanth Kumar during his lifetime.

Petitioners have produced RTC extracts for the years 2000-

01 to 2015-16 as Annexures-C to C14. With effect from the

year 2004-05, name of Vasanth Kumar was shown as

owner and cultivator of the land in question. In the column

pertaining to the nature of the crop grown, it is written as

‘site’. These entries have continued till 2015-16.

2. The land in question was notified by the Bengaluru

Development Authority (for short, ‘BDA’) by way of

Preliminary Notification published in the Karnataka

Gazette dated 13.04.1989 for formation of Banashankari

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7th Stage Layout. This was followed by Final Notification

published in the Karnataka Gazette on 11.10.1999. Copy

of these notifications are produced at Annexures-D & E,

respectively. Respondent no.3 – Special Land Acquisition

Officer, BDA, drafted an award in respect of the land in

question on 18.08.2000 for a sum of Rs.13,72,983/- at the

rate of Rs.1,10,000/- per acre along with all statutory

benefits payable.

3. The grievance of petitioners is that so far BDA has

neither tendered the compensation nor paid it to the

petitioners and that petitioners have not been paid a single

paisa though possession of their land has been taken over

long ago. It is urged by petitioners that as no amount of

compensation has been paid so far, in view of the

enactment of Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 (for short, ‘New Act’), the

acquisition proceedings initiated under the Land

Acquisition Act, 1894, shall be deemed to have lapsed,

particularly in the light of Section 24(2) of the New Act.

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4. It is urged by the learned Counsel for the petitioners

that in the present case, award was passed on 24.08.2000,

14 years prior to the commencement of the New Act on

01.01.2014. As no compensation has been paid till date,

provisions of Section 24(2) of the New Act are applicable to

the present case and the acquisition proceedings in

respect of the schedule property shall be deemed to have

lapsed. It is in this background, a declaration has been

sought to the said effect.

5. In the alternative, it is contended in paragraphs 25(a)

to 25(c) of the memorandum of writ petition that

respondents ought not to have utilized the land of the

petitioners without paying any compensation; Article 300A

of the Constitution of India has been violated because

deprivation of petitioners of their land without paying

compensation tantamounts to violation of the

constitutional mandate under Article 300A; that

respondents have abused their position and power in

utilizing the land without paying any compensation Hence,

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petitioners were entitled for allotment of alternate land of

equal extent together with compensation by way of

damages in view of illegal utilization of their lands. They

have also contended that respondents have unauthorizedly

utilized the land of the petitioners and have been deprived

of its profitable use approximately to an extent of Rs.5

lakhs per year. They claim that they are entitled for

damages suffered from the year 1989. It is in this

background, petitioners have sought the following reliefs.

(a) To declare that the acquisition proceedings in respect of the land in question has lapsed and become inoperative;

(b) In the alternative, to direct the respondents to pay compensation in terms of the provisions of the New Act;

(c) Issue a direction in the nature of writ of

mandamus directing respondent no.2 to allot alternate land approximately to an extent of 2,26,512 sq. ft. in a well developed area along with solatium or in the alternate to pay compensation as per the present market value;

(d) Any other order or direction that the court deems fit in the facts and circumstances of the case.

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6. Learned Counsel appearing for the petitioners has

placed reliance on the following judgments:

I. ALIGARH DEVELOPMENT AUTHORITY VS MEGH

SINGH & OTHERS – (2016) 12 SCC 504;

II. VIJAY LATKA & ANOTHER VS STATE OF HARYANA

& OTHERS – (2016) 12 SCC 487;

III. KARNAIL KAUR & OTHERS VS STATE OF PUNJAB

& OTHERS – (2015) 3 SCC 206;

IV. RAM KISHAN & OTHERS VS STATE OF HARYANA

& OTHERS – (2015) 4 SCC 347;

V. SITA RAM VS STATE OF HARYANA & ANOTHER –

(2015) 3 SCC 597;

VI. SHARMA AGRO INDUSTRIES VS STATE OF

HARYANA & OTHERS – (2015) 3 SCC 341;

VII. BHARAT KUMAR BS STATE OF HARYANA &

ANOTHER – (2014) 6 SCC 586;

VIII. BIMLA DEVI & OTHERS VS STATE OF HARYANA &

OTHERS – (2014) 6 SCC 583;

IX. PUNE MUNICIPAL CORPORATION & ANOTHER VS

HARAKCHAND MISIRIMAL SOLANKI & OTHERS –

(2014) 3 SCC 183; 7. BDA has taken up specific contention in the

statement of objections that possession of the land which

measured 5 acres 14 guntas including 6 guntas of kharab

was taken on 04.09.2000 by the Land Acquisition Officer

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by drawing a mahazar. After taking possession, the same

was handed over to the Engineering Section of BDA for

formation of layout. The Engineering Section has formed

the layout in the acquired land including other lands. In

this regard, he has produced copy of the award, copy of

the mahazar at Annexure-R1, copy of the layout plan at

Annexure-R3 and document to show the number of sites

formed as per Annexure-R4. It is also stated therein that

sites formed have been allotted in favour of different

allottees who have constructed houses in their respective

sites. It is thus contended that the scheme has been fully

implemented, and therefore, question of lapse of

acquisition did not arise. It is also contended in the

statement of objections that soon after passing of the

award notices were issued to the notified khathedar under

Section 12(2) of the Land Acquisition Act which has been

served on the owner of the land Mr. Vasanth Kumar on

02.09.2000. Copy of the notice is produced at Annexure-

R5. It is also contended that as there were no rival claims

in respect of the compensation amount, the same was not

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deposited in the Civil Court as required under Sections 30

& 30(1) of the Land Acquisition Act. It is urged by the BDA

that though petitioners were aware of the award passed

and the layout formed, they did not approach the authority

for payment of compensation till 2013 and that it was only

in the year 2013, that they asserted their rights to seek

compensation.

8. In response to the statement of objections filed and

the defence taken, particularly urging that despite service

of Section 12(2) notice, late Vasanth Kumar or his legal

representatives did not come and receive the amount

although they had the knowledge of passing of the award

and taking over possession, petitioners have filed rejoinder

dated 24.07.2017. They have urged that father of

petitioners had made a request to the BDA seeking

permission to develop the land and calling upon the BDA

not to proceed further with the acquisition proceedings. He

relied on the Government Order dated 17.11.1995 to

develop the land and share it in the ratio of 70:30 with the

BDA. Though this representation was made prior to the

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Final Notification published on 11.10.1999, BDA did not

accept the request. Hence, father of the petitioners filed

W.P.No.29018/2000. When the said writ petition was

pending, the request was rejected on 03.08.2000 by the

Town Planning Member, BDA. Hence, the writ petition was

dismissed on 19.10.2000 reserving liberty to the petitioner

therein to challenge the rejection of his request. Father of

petitioner challenged rejection of his request in

W.P.No.34034/2000 and sought direction to the BDA to

permit him to develop the schedule property as per

Government Order dated 17.11.1995. This writ petition

was allowed on 12.04.2001. The order dated 03.08.2000

passed by the Town Planning Member, BDA, rejecting the

request of the petitioners was set aside. The matter was

remitted to the respondents to re-consider the request in

accordance with law, expeditiously, at any rate, within six

months. This order dated 12.04.2001 is produced at

Annexure-N. But, very strangely no action was taken to

comply with the said direction. Indeed, BDA has violated

this direction of the Court. The records of the BDA show

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that it had already highhandedly taken over possession of

the land on 04.09.2000 but had suppressed this material

from this Court in W.P.No.34034/2000.

9. It is brought to the notice of this Court in the

rejoinder filed by the petitioners that after Section 12(2)

notice was issued on 25.08.2000, father of petitioners

made a detailed representation seeking reference of the

matter to the Civil Court for determining fair compensation

and even before such a representation was made, the Land

Acquisition Officer had made a note for preparing bills and

vouchers for a sum of Rs.13,53,462/- and for issue of

cheque in favour of Additional City Civil Judge, Bengaluru,

and a voucher was prepared on 11.09.2000, and

thereafter, the file was forwarded for the approval of the

Financial Adviser. But, BDA neither deposited the amount

in the Civil Court nor offered the amount to the petitioners’

father. Copies of the voucher dated 11.09.2000 drawn in

the name of payee – Additional City Civil Judge, City Civil

Court, Bengaluru, and the order sheet maintained by the

Special Land Acquisition Officer, BDA, which contains the

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order dated 11.09.2000 to the following effect, “Bills and

vouchers prepared for Rs.13,53,462-00 for issue of cheque

in favour of Additional City Civil Judge, Bangalore, and

Rs.19,521-00 to Tahsildar, Bangalore South Taluk,

Bangalore, file sent to FA on 11.09.2000”, are produced

along with the Rejoinder at Annexures-Q & S, respectively.

The note sheet containing the notes and orders of the BDA

with reference to the petitioners and their land is also

produced as part of Annexure-S. Indeed, the original

records maintained by the BDA have been made available

for the perusal of the Court. The following developments

can be noticed from the order sheet maintained.

10. No action was taken based on the order passed by

this Court to consider the request of the petitioner as per

the scheme introduced by the Government, whereunder

the land could be developed so as to share in the ratio of

70% by the owner and 30% by the BDA. The compensation

amount was neither paid to the father of the petitioner nor

deposited before the Civil Court. Even though petitioners

and their father made representations for payment of

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compensation, the amount was not paid to them. The BDA

has kept the amount of compensation unto itself while

depriving the petitioners of their valuable land for all these

years right from the date of taking over possession in the

year 2000. Indeed, a rival claimant by name

Munivenkatappa claiming himself to be a tenant in respect

of the schedule land had sought for de-notification of the

land. His claim to be registered as occupant was negatived

by upholding the right of the petitioners’ father as is

evident from the order dated 28.07.2002 passed in

W.A.No.1471/2001. It is pursuant to this order, the

Special Deputy Commissioner on 11.09.2003 has

conferred occupancy rights in favour of the petitioners’

father. In this background, there was a statutory

obligation on the part of the BDA to deposit the amount

before the Civil Court as per the provisions under Section

30 & 30(1) of the Land Acquisition Act. Admittedly, the

same has not been done.

11. The BDA has not produced any material to show that

it had tendered the compensation amount to the father of

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petitioners or for that matter to the petitioners. It is well

established that the acquiring body is under a statutory

obligation to either pay the compensation to the land

owners or to deposit the same in the Civil Court if the

situation so warranted. But, they cannot keep the award

amount unto themself. The BDA has not bothered to take

recourse to either of the options for the last 17 years. It is

not as if father of the petitioners was not available and his

address was not known so that compensation could not

have been tendered or disbursed. It is evident from the

proceedings maintained by the Land Acquisition Officer

that at one point of time the voucher was prepared along

with a cheque for depositing the compensation amount of

Rs.13,53,462/- in the Civil Court. But, for what reason the

said recourse was not adopted is not forthcoming. The

records of the BDA and the stand of the BDA do not show

that there was any valid reason for the BDA for not

depositing the amount in the civil court or to disburse the

same to the land owner.

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12. In the statement of objections, the stand of the BDA

is, that the land owner ought to have received the

compensation by demanding the same approaching the

BDA. This is not a case where BDA had tendered the

amount of compensation, but the land owner had declined

to receive the same. Nor is it a case where for the

compensation amount a cheque was kept ready in the

name of the land owner with intimation given to the land

owner to receive the same by executing a valid receipt, but

the land owner failed to receive it. It is the statutory duty

of the BDA to tender the compensation amount before

taking possession of the land. When the BDA has clearly

asserted that possession of the land was taken by drawing

a mahazar dated 04.09.2000, it was incumbent on it to

tender to pay/tender/deposit the compensation amount in

the Civil Court, as the facts and circumstances may

warrant. Failure to discharge its duty tantamounts to

depriving the land owner of his land without adopting due

process of law. The same apparently runs counter to the

constitutional mandate under Article 300A.

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13. In the judgment of the Apex Court in the case of

VIJAY LATKA & ANOTHER VS STATE OF HARYANA & OTHERS –

(2016) 12 SCC 487, where a similar defence was taken by

the Haryana Urban Development Authority (HUDA)

contending that whoever had approached the HUDA, the

competent authority had paid compensation and as the

appellants therein had failed to approach the officer

concerned requesting for payment of compensation, they

could not be paid the same, the Apex Court has held as

under in the said case in paragraphs 5 & 6.

“5. ………We find this contention

difficult to appreciate. When land is

compulsorily acquired, it is for the

requisitioning authority to make the

payment and does not require the

landowner to come and receive the

payment.

6. As and when land is taken over

by way of acquisition, the landowner

has to be compensated with the amount

of compensation duly determined under

the Act. In case there is any dispute as

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to who is to be paid the amount, the

same is to be deposited in court in terms

of Section 31 of the 1894 Act. In this

case before us, the stand of the

requisitioning authority, namely,

Haryana Development Authority is that

the money is ready with them and it is

for the land owner to come and receive

the payment. This stand is not

permissible under the law. It is for the

authorities concerned to pay the money

and take the land and in case there is

any dispute as to whom the money

should be paid, then the same has to be

deposited in court.”

14. In the above case, by applying Section 24(2) of the

New Act, the Apex Court has declared that the proceedings

for acquisition of land stood lapsed and accordingly set

aside the same as having been lapsed. However, in the

instant case, the question is not so much as to whether

the entire acquisition proceedings have lapsed by the

application of Section 24(2) of the New Act. Whether

Section 24(2) of the New Act is applicable to the acquisition

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made under the provisions of the BDA Act is not necessary

to be examined in this case, though certain grounds are

urged in that connection. It is absolutely unnecessary to

deal with them. The acquisition proceedings cannot be

declared as lapsed because admittedly possession of the

land has been taken, layout has been formed and sites

have been distributed to several third parties. Indeed,

petitioners have pressed the alternate relief of allotment of

any other land of equal dimension having equal value or

payment of compensation as per the provisions of the New

Act based on the current market value along with damages

for illegal utilization of the land of the petitioners from the

year 2000 till date. In this background, though the action

of the BDA in not tendering or depositing the

compensation amount while taking possession of the land

from the father of the petitioner, has to be declared as

wholly illegal and opposed to the statutory provisions

contained in the Land Acquisition Act, 1894, and the BDA

Act, the acquisition cannot be set at naught. But the

injury done to the petitioners by the illegal act of the

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respondents has to be redressed. The stand taken by the

BDA that petitioners can only claim the market value for

the acquired land as on the date of preliminary notification

published on 13.04.1989 and that at best, they would be

entitled for statutory benefits along with interest from the

date of taking over possession as provided under the Land

Acquisition Act, 1894, cannot be accepted.

15. As already pointed out above, BDA has acquired the

land, taken possession of the same, and has allotted it to

third parties receiving the consideration thereof. But, as

far as the land looser is concerned, it has not bothered to

pay the compensation. It has kept the amount unto itself.

This action can only be characterized as highly illegal,

unjust and hence, deprecable.

16. In the case of TUKARAM KANA JOSHI & OTHERS VS

M.I.D.C. & OTHERS – (2013) 1 SCC 353, in paragraphs 8 & 9,

the Apex Court has observed as under:

“8. In the case at hand, there has been

no acquisition. The question that emerges for

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consideration is whether, in a democratic

body polity, which is supposedly governed by

the Rule of Law, the State should be allowed

to deprive a citizen of his property, without

adhering to the law. The matter would have

been different had the State pleaded that it

has right, title and interest over the said land.

It however, concedes to the right, title and

interest of the appellants over such land and

pleads the doctrine of delay and laches as

grounds for the dismissal of the

petition/appeal.

9. There are authorities which state that

delay and laches extinguish the right to put

forth a claim. Most of these authorities pertain

to service jurisprudence, grant of

compensation for a wrong done to them

decades ago, recovery of statutory dues,

claim for educational facilities and other

categories of similar cases, etc. Though, it is

true that there are a few authorities that lay

down that delay and laches debar a citizen

from seeking remedy, even if his fundamental

right has been violated, under Article 32 or

226 of the Constitution, the case at hand

deals with a different scenario altogether.

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Functionaries of the State took over

possession of the land belonging to the

appellants without any sanction of law. The

appellants had asked repeatedly for grant of

the benefit of compensation. The State must

either comply with the procedure laid down

for acquisition, or requisition, or any other

permissible statutory mode. There is a

distinction, a true and concrete distinction,

between the principle of "eminent domain"

and "police power" of the State. Under certain

circumstances, the police power of the State

may be used temporarily, to take possession

of property but the present case clearly shows

that neither of the said powers have been

exercised. A question then arises with respect

to the authority or power under which the

State entered upon the land. It is evident that

the act of the State amounts to encroachment,

in exercise of "absolute power" which in

common parlance is also called abuse of

power or use of muscle power. To further

clarify this position, it must be noted that the

authorities have treated the land owner as a

'subject' of medieval India, but not as a

'citizen' under our constitution.”

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17. Though these observations are made by the Apex

Court in the context of a case where the State had

deprived the citizen of his valuable land without acquiring

the same and without paying compensation to him, the

said observations regarding right of the land looser and the

obligations of the acquiring body to follow the due

procedure which not only involves acquisition of land in

accordance with law, but also payment of compensation as

per the procedure prescribed before taking over possession

are very much applicable to the instant case. If land is

acquired by issuing notifications and award is passed but

compensation is not paid, the harm and injury that results

to the land looser is not different as compared to the

utilization of land without acquisition. The latter, no

doubt, is a graver form of arbitrary exercise of power

completely violating the constitutional mandate under

Article 300A and the other statutory provisions of the Land

Acquisition Act. But merely because notifications acquiring

the land had been issued, and indeed award had passed

determining the compensation payable for the acquired

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land, action of the statutory authority cannot pass the

litmus test of being just, fair and reasonable as mandated

in Article 300A and as required under the statutory

provisions of the Land Acquisition Act, unless

compensation is paid/tendered/deposited by following due

process before possession was taken. Failure to comply

with this mandatory requirement, may entail very serious

consequences on the acquiring body and may even in

certain cases affect the very basis of acquisition. The BDA

cannot get away with such arbitrary, illegal and unjust act

by saying that it will pay compensation along with interest

reckoning the date of Preliminary Notification for

quantifying the compensation.

18. The facts of the case clearly disclose that father of

the petitioners had asserted his rights. He had even

requested the BDA to consider his case for grant of

permission to develop the land with an option to deliver

30% of the developed land to the BDA for allotment to the

needy. Indeed, this Court having examined this request

had issued a direction to the BDA to consider the request.

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Nothing is forthcoming from the records nor anything is

stated in the statement of objections as to what happened

to this direction issued by this Court. On the other hand,

BDA has issued award notice under Section 12(2) of the

Land Acquisition Act on 02.09.2000. But, without even

tendering compensation, has taken possession on

04.09.2000 as is clear from the records. It is thus clear

that inspite of court direction to consider the request of

petitioners under the scheme providing 70:30 sharing of

developed land, in utter violation of the direction, the BDA

has dispossessed the petitioners. The BDA has gone ahead

with the acquisition and has taken possession of the land

highhandedly without paying compensation or depositing

the same. Therefore, this is a clear case of highly arbitrary

action. Petitioners have been deprived of the valuable piece

of land which was their source of livelihood, without any

compensation. 17 years have since passed. It will be highly

unjust to tell the petitioners that they should take the

compensation amount determined by the Land Acquisition

Officer along with interest and rest satisfied. They are

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entitled for payment of compensation based on the current

market value along with damages.

19. Hence, this writ petition is allowed. It is hereby

ordered that BDA shall treat the land as having been

acquired today and pay the compensation determining the

market value based on the present market value as it

obtains today as per the provisions of the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013. The market

value shall be determined by passing an order within a

period of 15 days from today and the same shall be paid

within a period of 15 days thereafter to the petitioners. It is

also open to the BDA to grant equal extent of land of

similar value having similar potentiality as an alternative.

The said order to be passed by the BDA shall be construed

as an award for all practical and legal purposes. It is held

that BDA is also liable to pay damages for the illegal use

and occupation of the land in question with effect from the

year 2000 which has to be assessed while passing the

order. Liberty is reserved to the petitioners to approach the

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competent authority seeking reference of their dispute for

further relief.

Sd/- JUDGE

KK

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