Karnataka High Court
Shri Prakash N Baldota vs The State Of Karnataka on 27 January, 2025
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WP No. 16071 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
WRIT PETITION NO. 16071 OF 2021 (LA-BDA)
BETWEEN:
SHRI. PRAKASH N. BALDOTA
AGED 71 YEARS,
S/O. N. R. BALDOTA
R/AT NO.2472, 25TH CROSS
BSK II STAGE,
BANGALORE-560070
(SENIOR CITIZEN BENEFIT IS CLAIMED)
...PETITIONER
(BY SRI. A. RAVISHANKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
M. S. BUILDING,
BENGALURU-560001
VN REPRESENTED BY ITS SECRETARY
BADIGER
2. THE COMMISSIONER
BENGALURU DEVEOPMENT AUTHORITY,
Digitally signed
by V N KUMARA PARK WEST,
BADIGER BENGALURU-560020.
Date:
2025.01.29
15:13:27 +0530 3. SPECIAL LAND ACQUISITON OFFICER,
BENGALURU DEVELOPMENT AUTHORITY
KUMARA PARK WEST,
BENGALURU-560020.
4. KARNATAKA HOME TAX DEPARTMENT
HOUSE BUILDING CO OPERATIVE SOCIETY LTD,
CENTRAL REVENUE,
QUEENS ROAD,
SHIVAJI NAGAR,
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WP No. 16071 of 2021
BANGALORE-560001
REPRESENTED BY ITS SECRETARY
...RESPONDENTS
(BY SRI. GURUSWAMY, AGP FOR R1;
SRI. G.S. KANNUR, SR. COUNSEL FOR SRI. B.S.SACHIN, ADVOCATE
FOR R2 & R3; SRI. B.N. PRAKASH, ADVOCATE FOR C/R4)
-------
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO DECLARE THAT THE
ENTIRE ACQUISITION WITH RESPECT TO PETITION SCHEDULE
PROPERTY HAS BEEN ABANDONED BY B.D.A AND CONSEQUENTLY,
SCHEME IS LAPSED AS THE SAME HAS NOT BEEN SUBSTANTIALLY
IMPLEMENTED UNDER SECTION 27 OF THE BDA ACT, 1976 AND TO
HOLD THAT PROVISION OF SECTION 36 OF THE BDA ACT, 1976 HAS
BECOME INOPERATIVE AND QUASH PRELIMINARY NOTIFICATION
DATED 29.12.1988-89 PUBLISHED IN THE OFFICE GAZETTE DATED
13.01.1989 ISSUED UNDER SECTION 17(1) OF THE BDA ACT
PRODUCED AT ANNEXURE'B' AND THE DECLARATION/FINAL
NOTIFICATION ISSUED UNDER SECTION 19(1) OF THE BDA ACT
DATED 17.09.1997 PRODUCED AT ANNEXURE'K' BEARING NO.UDD
434 MNX 97 AND TO DECLARE THAT THE SALE DEED DATED
31.07.2021, DULY REGISTERED IN THE OFFICE OF THE ADDITIONAL
DISTRICT REGISTRAR, BANGALORE URBAN DISTRICT, REGISTERED
AS DOCUMENT NO.1281 BY SECOND RESPONDENT IN FAVOUR OF
FOURTH RESPONDENT PRODUCED AT ANNEXURE'Z' AS NON-EST,
ILLEGAL AND VOID ABINITIO AND DOES NOT CREATE ANY RIGHT IN
FAVOUR OF FOURTH RESPONDENT AND ISSUE A WRIT OF
MANDAMUS OR ANY OTHER WRIT DIRECTING THE 2ND RESPONDENT
TO ISSUE NO-OBJECTION CERTIFICATE IN RESPECT OF THE
SCHEDULE PROPERTY.
THIS WRIT PETITION HAVING BEEN RESERVED FOR ORDERS,
COMING FOR PRONOUNCEMENT OF ORDERS, THIS DAY, MADE THE
FOLLOWING:
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CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH
CAV ORDER
It is stated in the petition that, the petitioner is owner in
possession of 2 acre 21 guntas in Sy.No.89 of Uttarahalli
Village, Bengaluru South Taluk and to substantiate the same,
the petitioner has produced the RTC extracts. It is stated that,
the respondent-authorities have issued notification under
Section 17(1) and (3) of Bangalore Development Authority Act,
1976 (for short, 'the Act'), vide Annexure-B dated 29.12.1988
and thereafter, issued notification dated 09.05.1994 under
Section 19(1) of the Act (Annexure-C), proposed to acquire the
lands for the purpose of formation of layout known as
"Banashankari V stage".
2. It is further stated in the writ petition that, the
respondent has issued New Housing Policy as per Annexure-D,
wherein it is indicated that, in the event of incomplete
acquisition made by the respondent-authorities, owner of the
land, is permitted to develop 12% of the total built up area to
be given to the respondent-BDA or handing over 30% of the
developed sites to the respondent-BDA. It is also stated in the
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writ petition that, this Court in WP.No.21975/1994 and
connected writ petitions disposed of on 19.09.1996 (Annexure-
E), quashed the Final Notification dated 09.05.1994 and liberty
was reserved to the respondent-BDA to proceed with the
acquisition proceedings in terms of the observation made at
paragraph 9 of the above judgment referred to in the writ
petition. It is also stated that, the petitioner has made
representation dated 15.10.1996 (Annexure-F), seeking
approval of the layout plan and pursuant to the same the
respondent-BDA has issued reply dated 06.11.1996 (Annexure-
G), seeking certain clarification. It is also to be noted that, the
representation made by the petitioner to drop the acquisition
proceedings insofar as the subject land was considered in the
resolution dated 28.07.1997, vide subject No.199/97 and
resolved to grant approval for formation of layout subject to
conditions as specified in Annexure-H to the writ petition.
3. It is also stated in the writ petition that, the
respondent has issued Notification dated 16.09.1997, under
Section 19(1) of the Act and sought to acquire the schedule
land pursuant to the Preliminary Notification dated 29.12.1988
(Annexure-B). It is also stated by the petitioner, that the
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petitioner has challenged the acquisition proceedings in
WP.No.3334/2000 and this Court Vide order dated 08.07.2002
(Annexure-S), dismissed the petition.
4. Feeling aggrieved by the same, the petitioner has
filed W.A.No.4391/2002 and this Court Vide order dated
12.06.2008 (Annexure-T), permitted the petitioner to withdraw
the writ petition, and directed the petitioner to work out his
remedy in terms of the resolution dated 20.06.2000, passed by
the respondent-BDA. It is also stated in the writ petition that,
the petitioner has filed WP.No.10165/2008, in respect of the
subject land and this Court disposed of the petition without
interfering with the acquisition proceedings and the said order
was assailed in W.A.No.336/2010 and this Court vide order
dated 02.04.2014 (Annexure-W), permitted the petitioner to
withdraw the petition and to avail the remedy before the
respondent No.2.
5. It is also stated in the writ petition that, though the
petitioner is in possession of the land in question and no
mahazar has been drawn as required under law and the
respondent-BDA has executed Registered Sale Deed dated
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31.07.2021 (Annexure-Z), in favour of respondent No.4 and
being aggrieved by the same, the petitioner has filed this writ
petition.
6. I have heard, Sri. A. Ravishankar, learned counsel
appearing for the petitioner, Sri. G. S. Kannuar, learned Senior
counsel for Sri. B. S. Sachin, learned counsel appearing for the
respondent-BDA, Sri. B.N. Prakash, learned counsel for
respondent No.4-State and Sri.Manjunath K., learned HCGP for
respondent No.1.
7. Sri. A. Ravishankar, learned counsel appearing for
the petitioner, by referring to the earlier orders passed by this
Court in WP.No.21975/1994 contended that this Court, allowed
the writ petition and quashed the Final Notification dated
09.05.1994 as well as the writ petition filed by the petitioner
herein in WP.No.3334/2000, dated 08.07.2002 (Annexure-S),
order dated 12.06.2008 in WA No. 4391/2002 (Annexure-T)
and order dated 05.01.2010 in WP No. 10165/2008 (Annexure-
V) as well as order dated 02.04.2014 in WA.No.336/2010
(Annexure-W) and contended that, land surrounding to the
schedule land belonging to the petitioner is vacant and
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petitioner is in possession of the land in question and that
apart, the respondent-BDA has dropped the acquisition
proceedings in respect of the surrounding land in question and
as such, sought for quashing of the impugned acquisition
notification in respect of the land in question.
8. It is also submitted by Sri.A.Ravishankar, learned
counsel appearing for the petitioner by referring to the
judgment of this Court in WA.No.435/2017 and connected writ
appeals disposed of on 03.01.2020 insofar as the land bearing
Sy.Nos.83 and 84, which are adjacent to the land belonging to
the petitioner, made a reference with regard to paragraph 6 to
17 and argued that, as the respondent-authorities have
abandoned the Scheme of acquisition and further the
Notification was issued for formation of the layout to an extent
of 1458.21 acres and layout was formed to an extent of 116-27
Acres only, nearly 3 to 4% of the land covered for the
completion of the scheme and as such, the said aspect of the
matter was made known to this Court in the earlier proceedings
and accordingly by referring to the judgment of the Hon'ble
Supreme Court in the case of OFFSHORE HOLDINGS
PRIVATE LIMITED Vs BANGALORE DEVELOPMENT
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AUTHORITY AND OTHERS1, Sri.A.Ravishankar learned
counsel for the petitioner argued that, judgment of the Division
Bench is squarely applicable to the present case and
accordingly, sought for interference of this Court.
9. Nextly, Sri.A.Ravishankar, learned counsel
appearing for the petitioner argued that, the respondent-BDA
has not followed the procedure contemplated with regard to
taking possession of the land as well as while drawing mahazar
and in this regard, he refers to the Notification dated
02.08.1999 (Annexure-P) and contended that, there is no
address of the witnesses, no prior notice was issued to the
petitioners and accordingly, places reliance on the judgment of
this Court in the case of DR.A.PRATHASARATHY AND
OTHERS Vs. STATE OF KARNATAKA AND OTHERS2 and
argued that, the impugned notifications are liable to be
quashed by this Court.
10. It is also the submission of Sri.A.Ravishankar,
learned counsel appearing for the petitioner, by referring to
land bearing Sy.Nos.83 and 84, neighbouring lands of the
1
(2011) 3 SCC 139
2
ILR 2017 KAR 3489
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subject land in this petition and invited the attention of this
Court to the order dated 02.02.2016 in WP.No.13374-75/2013
and contended that, this Court allowed the writ petition and
held that the Scheme has become lapsed and the said
judgment of learned Single judge was confirmed by the Division
Bench and accordingly, sought for interference of this Court.
11. It is also submitted by the learned counsel
appearing for the petitioner by referring to the order dated
12.10.2022 in SLP No.13474/2020 and SLP.No.13491/2020
and contended that, the Hon'ble Supreme Court confirmed the
judgment passed by the Division Bench of this Court in the
aforementioned writ appeals with regard to the neighbouring
lands, which were sought to be acquired by the respondent-
authorities along with the schedule land in this petition and
accordingly, submitted that if the lands surrounded by the
schedule property belonging to the petitioner has been held to
be free from acquisition proceedings, the same yardsticks to be
applicable to the facts of this case and therefore, the said
aspect of the matter ought to be considered on the sole ground
that, the respondent-BDA has not taken possession of the land
in question and had taken possession, only to an extent of 2 to
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3% of total extent of the land sought to be acquired and as
such, sought for interference of this Court.
12. Per contra, Sri. G.S.Kannur learned senior counsel
appearing for respondent-BDA argued that, the writ petition
deserved to be dismissed on the question of delay and laches.
By referring to the earlier writ petitions, learned senior counsel
contended that, the res judicata is applicable to the facts of the
case. It is also the specific contention of the learned senior
counsel appearing for the respondent, that the land is vested
with the State and mahazar has been challenged twice before
this Court and this Court declined to interfere with the same
and as such, it is contended that, as the award has been
passed as per Annexure-R3 and deposit of the compensation is
made as per Annexure-R5 and therefore, he submitted that no
interference is called for in this writ petition.
13. To buttress his arguments learned senior counsel
appearing for the respondent, places reliance on the judgment
of this Court in the case of MADURAMMA AND OTHERS Vs.
STATE OF KARNATAKA AND OTHERS in WA.No.391/2019
disposed of on 30.06.2021 and argued that, the principles of
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res judicata is applicable to the facts on hand, so also, insofar
as the delay in filing the writ petition.
14. Learned senior counsel also places reliance on the
order dated 14.03.2023 in WA.No.725/2021 and argued that,
the Scheme of Banashankari V stage layout has not lapsed and
is full fledged residential layout formed by the respondent-BDA
and accordingly, sought for dismissal of the writ petition.
15. Learned HCGP Manjunath K and Sri. B. N Prakash
learned counsel appearing for the respondent No.4 argued on
similar lines with the learnead Senior Counsel appearing for the
respondent-BDA and contended that the possession of the land
in question has been taken and therefore the writ petition does
not survive for consideration.
16. Having heard the learned counsel appearing for the
parties, it is the case of the petitioners that the land bearing
Sy. No.89 of Uttarhalli village, Bengaluru South Taluk,
measuring 2 acres 21 guntas is belonged to the petitioner. It is
stated that the respondent-BDA has issued notification under
Section 17(1) of the BDA Act, on 29.12.1988 (Annexure-B) and
proposed to acquire the large extent of land for the purpose of
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formation of layout called as "Banshankari V Stage".
Thereafter the respondent authority have issued Final
Notification dated 09.05.1994 (Annexure-C) under Section
19(1) of the BDA Act. It is the grievance of the petitioner that,
the respondent authorities have not implemented the scheme
as required under Section 27 of BDA Act. It is also stated that,
no mahazar was drawn as required under law and the mahazar
was done in a mechanical manner on a cyclostyle form. In this
regard, I have carefully considered the writ papers wherein, the
record of rights stand in the name of the petitioner even during
2020-21, the name of the petitioner is reflected in the RTC
extracts. It is the principal submission of Sri. A. Ravishankar
that the State Government has issued new housing policy to
encourage investment by private sector/co-operative sector in
housing projects as per Government Order dated 17.11.1985.
The respondent-BDA has not produced any material with regard
to compliance of the aforementioned government order. It is
also to be noted that Government Order dated 17.11.1985
(Annexure-D) in which Clause(a to c) a reads as under:
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"GOVERNMENT ORDER NO
HUD/341/MN/95/BANGALORE DTD:17-11-1995
Petitioners are pleased to accord approval for the
following:
a. In case where the land has been notified by
Bangalore Development Authority, but
acquisition proceedings are not completed and
the land has not vested in B.D.A., the owner of
the land may, if he so desires, be permitted to
develop the land for formation of sites or for
Group Housing. Where the land owner on his
own or with the assistance of a developer takes
up Group Housing Projects, he shall give 12% of
the total built area to the B.D.A. In case, if he
forms sites or such land, he should hand over
30% of the sites so formed to the B.D.A.
b. If the private developers/owners who desire to
form sites on the land owned by them but not
covered under land acquisition proceedings may
be permitted to do subject to earmarking of 25%
of total sital area for B.W.S. and L.I.G. These
sites should be made available to deserving
persons identified by B.D.A. at affordable prices.
c. Where private developers go in for Group
Housing Projects, their proposals shall include
construction of L.I.G./M.I.G. -II and H.I.G.-I and
II Type houses. The cost of the L.I.G./H.I.G.-I
houses should be so that it should be affordable
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and made available to the deserving persons.
The allotment of these will have to be in
conformity with the B.D.A. Allotment Rules and
the number of such L.I.G. and M.I.G.-I houses
should not be less than 25% of the total number
of houses proposed to be built up."
17. It is also not in dispute that this Court in W.P.
No.21975/1994 disposed off on 19.09.1996 (Annexure-E)
allowed the writ petition in respect of the very same scheme
i.e., for formation of layout called 'Banshankari V Stage',
wherein, the notification under Section 19(1) dated 09.05.1994
(Annexure-C) was passed in respect of the subject land therein
and liberty was reserved to the respondent authorities to
complete the scheme at the earliest. It is also not in dispute
that the petitioner herein has filed WP No.3334/2000,
challenging the very same notification issued under Section
19(1) of the BDA Act, and this Court vide order dated
08.07.2002 rejected the petition and same was confirmed in
WA No. 4391/2002 dated 12.06.2008. It is also not in dispute
that the petitioner has filed WP No.10165/2008 before this
Court which came to be dismissed on 05.01.2010 and being
aggrieved by the same petitioner has preferred WA
No.336/2010 which came to be withdrawn by order dated
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02.04.2014 with a liberty to the parties to workout their
remedies before the authorities. In view of the liberty reserved
by the Division Bench of this Court, as well as not adhering to
the Government Order referred to above, doctrine of res-
judicata is not applicable to the facts of this case.
18. At this juncture, it is relevant to consider the fact
that the petitioner is in possession of the land in question as
per the RTC extracts produced at Annexure-A series and
therefore, though the learned Senior Counsel appearing for the
respondent-BDA invited the attention of the Court to
notification under Section 16(1) of L.A. Act and argued that the
possession of the land in question has been taken, however
same cannot be accepted on the sole ground as the
respondent-BDA in its resolution dated 20.06.2000 in subject
No. 67 of 2000 (Annexure-R) had taken a decision to take
possession which makes it clear that no possession was taken
as per the notification under Section 16 of L.A. Act (Annexure-P
to the writ petition) and further, the RTC extracts stand in the
name of the petitioner, and as such, it is relevant to cite the
judgment of the Hon'ble Supreme Court in the case of Raghbir
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Singh Sehrawat v. State of Haryana and others3 wherein
paragraph 39 to 43 reads as under:
"39. In this context, it is necessary to remember
that the rules of natural justice have been
ingrained in the scheme of Section 5-A with a view
to ensure that before any person is deprived of his
land by way of compulsory acquisition, he must
get an opportunity to oppose the decision of the
State Government and/or its
agencies/instrumentalities to acquire the particular
parcel of land. At the hearing, the objector can
make an effort to convince the Land Acquisition
Collector to make recommendation against the
acquisition of his land. He can also point out that
the land proposed to be acquired is not suitable
for the purpose specified in the notification issued
under Section 4(1). Not only this, he can produce
evidence to show that another piece of land is
available and the same can be utilised for
execution of the particular project or scheme.
40. Though it is neither possible nor desirable to
make a list of the grounds on which the landowner
can persuade the Collector to make
recommendations against the proposed acquisition
of land, but what is important is that the Collector
should give a fair opportunity of hearing to the
objector and objectively consider his plea against
3
(2012) 1 SCC 792
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the acquisition of land. Only thereafter, he should
make recommendations supported by brief
reasons as to why the particular piece of land
should or should not be acquired and whether or
not the plea put forward by the objector merits
acceptance. In other words, the recommendations
made by the Collector must reflect objective
application of mind to the objections filed by the
landowners and other interested persons.
41. Before concluding, we deem it necessary to
observe that in recent past, various State
Governments and their functionaries have adopted
very casual approach in dealing with matters
relating to the acquisition of land in general and
the rural areas in particular and in a large number
of cases, the notifications issued under Sections
4(1) and 6(1) with or without the aid of Section 17
and the consequential actions have been nullified
by the courts on the ground of violation of the
mandatory procedure and the rules of natural
justice. The disposal of cases filed by the
landowners and others take some time and the
resultant delay has great adverse impact on
implementation of the projects of public
importance. Of course, the delay in deciding such
cases may not be of much significance when the
State and its agencies want to confer benefit upon
private parties by acquiring land in the name of
public purpose.
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42. It is difficult, if not impossible, to appreciate
as to why the State and its instrumentalities resort
to massive acquisition of land and that too without
complying with the mandate of the statute. As
noted by the National Commission on Farmers, the
acquisition of agricultural land in the name of
planned development or industrial growth would
seriously affect the availability of food in future.
After independence, the administrative apparatus
of the State has not spent enough investment in
the rural areas and those who have been doing
agriculture have not been educated and
empowered to adopt alternative sources of
livelihood. If land of such persons is acquired, not
only the current but the future generations are
ruined and this is one of the reasons why the
farmers who are deprived of their holdings commit
suicide.
43. It also appears that the authorities concerned
are totally unmindful of the plight of those
sections of the society, who are deprived of their
only asset like small house, small industrial unit,
etc. They do not realise that having one's own
house is a lifetime dream of a majority of the
population of this country. Economically affluent
class of society can easily afford to have one or
more houses at any place or locality in the country
but other sections of the society find it extremely
difficult to purchase land and construct house.
Majority of the people spend their lifetime savings
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for building a small house so that their families
may be able to live with a semblance of dignity.
Therefore, it is wholly unjust, arbitrary and
unreasonable to deprive such persons of their
houses by way of the acquisition of land in the
name of development of infrastructure or
industrialisation. Similarly, some people set up
small industrial units after seeking permission
from the competent authority. They do so with the
hope of generating additional income for their
family. If the land on which small units are
established is acquired, their hopes are shattered.
Therefore, before acquiring private land the State
and/or its agencies/ instrumentalities should, as
far as possible, use land belonging to the State for
the specified public purposes. If the acquisition of
private land becomes absolutely necessary, then
too, the authorities concerned must strictly comply
with the relevant statutory provisions and the
rules of natural justice."
19. It is also relevant to cite the judgment of Hon'ble
Supreme Court in the case of Kolkata Municipal Corporation
and Another vs. Bimal Kumar Shah and Others4.
Paragraphs 28 to 31 reads as under:
"28. These seven rights are foundational components
of a law that is tune with Article 300A, and the
absence of one of these or some of them would
4
2024 SCC Online 968
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render the law susceptible to challenge. The
judgment of this Court in K.T. Plantations (supra)13
declares that the law envisaged under Article
300A must be in line with the overarching principles
of rule of law, and must be just, fair, and reasonable.
It is, of course, precedentially sound to describe
some of these sub-rights as 'procedural', a
nomenclature that often tends to undermine the
inherent worth of these safeguards. These seven
sub-rights may be procedures, but they do constitute
the real content of the right to property under Article
300A, non- compliance of these will amount to
violation of the right, being without the authority of
law.
29. These sub-rights of procedure have been
synchronously incorporated in laws concerning
compulsory acquisition and are also recognised by
our constitutional courts while reviewing
administrative actions for compulsory acquisition of
private property. The following will demonstrate how
these seven principles have seamlessly become an
integral part of our Union and State statutes
concerning acquisition and also the constitutional and
administrative law culture that our courts have
evolved from time to time.
30. Following are the seven principles:
30.1. The Right to notice: (i) A prior notice informing
the bearer of the right that the State intends to
deprive them of the right to property is a right in
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itself; a linear extension of the right to know
embedded in Article 19(1)(a). The Constitution does
not contemplate acquisition by ambush. The notice to
acquire must be clear, cogent and meaningful. Some
of the statutes reflect this right.
(ii) Section 4 of the Land Acquisition Act,
1894, Section 3(1) of the Requisitioning and
Acquisition of Immovable Property Act, 1952, Section
11 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, and Section 3A of the
National Highways Act, 1956 are examples of such
statutory incorporation of the right to notice before
initiation of the land acquisition proceedings.
(iii) In a large number of decisions, our constitutional
courts have independently recognised the right to
notice before any process of acquisition is
commenced 14.
30.2. The Right to be heard: (i) Following the right to
a meaningful and effective prior notice of acquisition,
is the right of the property-bearer to communicate
his objections and concerns to the authority acquiring
the property. This right to be heard against the
proposed acquisition must be meaningful and not a
sham.
(ii) Section 5A of the Land Acquisition Act,
1894, Section 3(1) of the Requisitioning and
Acquisition of Immovable Property Act, 1952, Section
15 of the Right to Fair Compensation and
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Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, and Section 3C of the
National Highways Act, 1956, are some statutory
embodiments of this right.
(iii) Judicial opinions recognizing the importance of
this right are far too many to reproduce. Suffice to
say that that the enquiry in which a land holder
would raise his objection is not a mere formality.
30.3. The Right to a reasoned decision: i) That the
authorities have heard and considered the objections
is evidenced only through a reasoned order. It is
incumbent upon the authority to take an informed
decision and communicate the same to the objector.
(ii) Section 6 of the Land Acquisition Act,
1894, Section 3(2) of the Requisitioning and
Acquisition of Immovable Property Act, 1952, Section
19 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 and Section 3D of the
National Highways Act, 1956, are the statutory
incorporations of this principle.
(iii) Highlighting the importance of the declaration of
the decision to acquire, the Courts have held that the
declaration is mandatory, failing which, the
acquisition proceedings will cease to have effect.
30.4. The Duty to acquire only for public purpose: (i)
That the acquisition must be for a public purpose is
inherent and an important fetter on the discretion of
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the authorities to acquire. This requirement, which
conditions the purpose of acquisition must stand to
reason with the larger constitutional goals of a
welfare state and distributive justice.
(ii) Sections 4 and 6 of the Land Acquisition Act,
1894, Sections 3(1) and 7(1) of the Requisitioning
and Acquisition of Immovable Property Act,
1952, Sections 2(1), 11(1), 15(1)(b) and 19(1) of
the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement
Act, 2013 and Section 3A(1) of the National
Highways Act, 1956 depict the statutory
incorporation of the public purpose requirement of
compulsory acquisition.
(iii) The decision of compulsory acquisition of land is
subject to judicial review and the Court will examine
and determine whether the acquisition is related to
public purpose. If the court arrives at a conclusion
that that there is no public purpose involved in the
acquisition, the entire process can be set-aside. This
Court has time and again reiterated the importance
of the underlying objective of acquisition of land by
the State to be for a public purpose.
30.5. The Right of restitution or fair compensation:
(i) A person's right to hold and enjoy property is an
integral part to the constitutional right under Article
300A. Deprivation or extinguishment of that right is
permissible only upon restitution, be it in the form of
monetary compensation, rehabilitation or other
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similar means. Compensation has always been
considered to be an integral part of the process of
acquisition.
(ii) Section 11 of the Land Acquisition Act,
1894, Sections 8 and 9 of the Requisitioning and
Acquisition of Immovable Property Act, 1952, Section
23 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013, and Sections 3G and 3H of
the National Highways Act, 1956 are the statutory
incorporations of the right to restitute a person
whose land has been compulsorily acquired.
(iii) Our courts have not only considered that
compensation is necessary, but have also held that a
fair and reasonable compensation is the sine qua non
for any acquisition process
30.6. The Right to an efficient and expeditious
process: (i) The acquisition process is traumatic for
more than one reason. The administrative delays in
identifying the land, conducting the enquiry and
evaluating the objections, leading to a final
declaration, consume time and energy. Further,
passing of the award, payment of compensation and
taking over the possession are equally time
consuming. It is necessary for the administration to
be efficient in concluding the process and within a
reasonable time. This obligation must necessarily
form part of Article 300A.
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(ii) Sections 5A(1), 6, 11A, and 34 of the Land
Acquisition Act, 1894, Sections 6(1A) and 9 of the
Requisitioning and Acquisition of Immovable Property
Act,1952, Sections 4(2), 7(4), 7(5), 11(5), 14,
15(1), 16(1), 19(2), 25, 38(1), 60(4), 64 and 80 of
the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement
Act, 2013 and Sections 3C(1), 3D(3) and 3E(1) of the
National Highways Act, 1956, prescribe for statutory
frameworks for the completion of individual steps in
the process of acquisition of land within stipulated
timelines.
(iii) On multiple occasions, upon failure to adhere to
the timelines specified in law, the courts have set
aside the acquisition proceedings.
30.7. The Right of conclusion: (i) Upon conclusion of
process of acquisition and payment of compensation,
the State takes possession of the property in normal
circumstances. The culmination of an acquisition
process is not in the payment of compensation, but
also in taking over the actual physical possession of
the land. If possession is not taken, acquisition is not
complete. With the taking over of actual possession
after the normal procedures of acquisition, the
private holding is divested and the right, title and
interest in the property, along-with possession is
vested in the State. Without final vesting, the
State's, or its beneficiary's right, title and interest in
the property is inconclusive and causes lot of
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difficulties. The obligation to conclude and complete
the process of acquisition is also part of Article 300A.
ii) Section 16 of the Land Acquisition Act,
1894, Sections 4 and 5 of the Requisitioning and
Acquisition of Immovable Property Act,
1952, Sections 37 and 38 of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013,
and Sections 3D and 3E of the National Highways
Act, 1956, statutorily recognise this right of the
acquirer.
iii) This step of taking over of possession has been a
matter of great judicial scrutiny and this Court has
endeavoured to construe the relevant provisions in a
way which ensures non-arbitrariness in this action of
the acquirer 20. For that matter, after taking over
possession, the process of land acquisition concludes
with the vesting of the land with the concerned
authority. The culmination of an acquisition process
by vesting has been a matter of great importance.
On this aspect, the courts have given a large number
of decisions as to the time, method and manner by
which vesting takes place.
31. The seven principles which we have discussed are
integral to the authority of law enabling compulsory
acquisition of private property. Union and State
statutes have adopted these principles and
incorporated them in different forms in the statutes
provisioning compulsory acquisition of immovable
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property. The importance of these principles,
independent of the statutory prescription have been
recognised by our constitutional courts and they have
become part of our administrative law jurisprudence.
20. Following the declaration of law made by the
Hon'ble Supreme Court as the record of rights stand in the
name of the petitioner and mahazar has been drawn contrary
to the records and same is in cyclostyle form and further no
witnesses were present, though the learned Senior Counsel
appearing for the respondent-BDA argued that the writ petition
is hit by doctrine of res judicata however the records speak
otherwise and therefore, the submission made by the learned
Senior counsel appearing on behalf of the respondent-BDA
cannot be accepted.
21. The Division Bench of this Court in WA No.435/2017
and connected writ appeals by order dated 03.01.2020 in
respect of the very same scheme framed by the respondent-
BDA for formation of 'Banshankari V Stage' layout wherein, the
subject matter of the land was Sy.No.89 of Uttarhalli village,
Bengaluru South taluk (neighbouring land owners of the
petitioners) and this Court, dismissed the appeal preferred by
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the respondent-BDA and at paragraph No.5 to 20 held as
follows;
"5. The respondent Nos.2 and 3 filed their
statement of objections contending that the
final notification was published in the official
Gazette on 17.09.1997 wherein the land of the
petitioner is shown at Sl. Nos.72 and 73. It is
stated that subsequently possession of the land
was taken in respect of the land bearing Sy.
No.84 after following due procedure under the
Land Acquisition Act, 1894 (for short, 'the L.A.
Act'). It is also contended that the petitioner's
challenge to the land acquisition is already
negatived and thereafter, the award is passed
and the possession of the land is taken by the
Bengaluru Development Authority and delivered
to the Engineering Department on 07.01.2000.
The respondent No.2 claimed that an award
amount of Rs.22,86,037/- was passed on
08.12.1999 and after the same was
communicated to the land lady on 31.12.1999,
the possession of the land was taken over by
the Revenue Inspector and handed over to the
Engineering Section on 07.01.2000. It is also
contended that the layout could not be formed
in the land in question in view of the pendency
of Writ Petition No.9932 of 2000 before this
Court and that after issue of the final
notification, more than 80% of the lands are
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utilized for formation of the layout. Therefore,
the respondent Nos.2 and 3 claimed that the
acquisition cannot be declared to have lapsed
under Section 27 of the BDA Act.
6. Following the above, the respondent
Nos.2 and 3 filed an additional statement of
objections contending that 1458 Acres 21
guntas was the total notified area in the final
notification. However, possession was handed
over to the Engineering Section in respect of
421 Acres 17 guntas including the land in
question out of which 263.21 Acres was
denotified and the remaining land was under
litigation. The respondent No.2 enclosed a
detailed statement, a perusal of which discloses
the following:
Details Acres-
Sl.No.
Guntas
1 Built-up area 279-06
2 Deleted subsequent to 58-03
the orders in Writ
Petitions (Hon`ble High
Court)
3 De-notified land 205-18
4 Layout formed by BDA 116-27
5 Government land 255-04
6 Land under litigation 544-03
Total notified land 1458-21
7. Insofar as Uttarahalli village is
concerned, it is found that out of 500 Acres 06
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guntas, only 16 Acres 15 guntas is utilized for
the formation of the layout.
8. The learned Single Judge noticed the
above facts and passed the impugned order
dated 02.02.2016 holding that there is no
substantial implementation of the Scheme. The
learned Single Judge held that though the final
notification was issued during the year 1997 but
the extent of land utilized for the formation of
the layout was 116 Acres 27 guntas as of the
year 2014 and thus held that the Scheme could
not be said to be substantially implemented.
9. The learned Single Judge also delved
upon the question as to whether the lapsing of
the Scheme would result in lapsing of the
acquisition. To this, the learned Single Judge
deciphered the mahazar under which the
possession of the land in question was taken.
The learned Single Judge found that the
mahazar was just like the many mahazars that
were drawn by the respondent Nos.2 and 3,
which were cyclostyled forms where some of the
blanks were either filled or not filled and the
parentage of the persons shown as witnesses
and their addresses were not found in the
mahazar. The signature of the owner was
also not found on the mahazar. The learned
Single Judge therefore, held that the document
under which the possession of the property was
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taken was nebulous and held that the
respondent Nos.2 and 3 cannot establish the
taking over of possession of the land in
question. The learned Single Judge therefore
held as under:
"There is no hesitation in this case
as well to negate the document, which
seeks to establish the taking over of
possession. The mere recording of taking
over of possession of land by itself would
not satisfy this Court unless it was also
capable of being established if the parties
were called upon to tender evidence."
10. On the basis of such nebulous
documents, it would not be possible for the
Bengaluru Development Authority to proceed
further in that direction. Therefore, it cannot be
said that the possession of the land has been
taken. The learned Single Judge, therefore, held
that the lapsing of the Scheme would also result
in lapsing of the acquisition insofar as the land
of the petitioner is concerned. The respondent
Nos.2 and 3 are in appeal before this Court.
11. Curiously, the respondent No.1, who
was the author of the final notification and the
authority which approved the Scheme, is not in
appeal before us.
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12. Acquisition of land, be it for any
infrastructure project or for any industrial use or
for drawing development schemes as the
metropolis grows, has churned up enormous
litigation. The primary reason running common
through all such litigation is the selective
discrimination of land and land owners by the
State and statutory bodies while identifying
lands for acquisition. Though it is now trite that
a land owner cannot approach the Court seeking
the perpetuation of such discrimination as held
by the Hon`ble Apex Court in the Judgment
rendered in the case of BONDU RAMASWAMY
vs. BANGALORE DEVELOPMENT AUTHORITY
AND OTHERS reported in 2010 (7) Supreme
Court Cases 129. Para No.143 of the said
judgment reads as under:
"143. We are conscious of the fact
that when a person subjected to blatant
discrimination, approaches a court
seeking equal treatment, he expects relief
similar to what others have been granted.
All that he is interested is getting relief for
himself, as others. He is not interested in
getting the relief illegally granted to
others, quashed. Nor is he interested in
knowing whether others were granted
relief legally or about the distinction
between positive equality and negative
equality. In fact he will be reluctant to
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approach courts for quashing the relief
granted to others on the ground that it is
illegal, as he does not want to incur the
wrath of those who have benefited from
the wrong action. As a result, in most
cases those who benefit by the illegal
grants/actions by authorities, get away
with the benefit, while others who are not
fortunate to have "connections" or
"money power" suffer. But these are not
the grounds for courts to enforce negative
equality and perpetuate the illegality."
Yet we cannot lose sight of the fact that
this Court is an Arbiter between a citizen and
the mighty State and Courts cannot shut its
eyes to a palpable colourable exercise of power.
13. In so far as the present case is
concerned, the respondent No.1 sanctioned a
Scheme for formation of Banashankari V Stage
layout to be formed in 1458 Acres 21 guntas
of land in Uttarahalli, Marasandra,
Vaddarapalya,Doddakallasandra, Yelachenahalli,
Channasandra, Bikasipura, Vasanthapura,
Konanakunte of Uttarahalli hobli and
Halagevaderahalli of Kengeri hobli, Bengaluru
South Taluk. Following the sanction of such
Scheme under Section 18 of the BDA Act, a final
notification under Section 19 of the BDA Act was
issued on 16.09.1997, which was published in
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the Gazette on 17.09.1997. In so far as
Uttarahalli village is concerned, 500 Acres 06
guntas was notified including the land of
the petitioner. It is stated that the award in
respect of the land of the petitioner was passed
on 31.12.1999 and the notice under Section
12(2) of the Land Acquisition Act was also
issued on 31.12.1999 and since the petitioner
was not residing in the village, the notice under
Section 12(2) was pasted on the outer door of
the house on 31.12.1999. The respondent
No.2 has produced Annexure 'R3' (page No.162)
which discloses that the same was issued on
31.12.1999 requiring the Executive Engineer
(Assistant Executive Engineer) of respondent
No.2 to be present at the spot on 06.01.2000
to take over possession of the land. Curiously,
in the mahazar (Annexure 'R4') drawn
evidencing the taking over of possession, it is
found that the Executive Engineer was not
present on 06.01.2000 at the spot. The
mahazar shows that the Executive Engineer
took possession of the land on 07.01.2000. This
means that the Executive Engineer was not
present on 06.01.2000 and there is no
corresponding intimation by the revenue
officials of respondent No.2 to the Engineering
section to be present at the spot on 07.01.2000
to take possession. It therefore belies the
contention of respondent Nos.2 and 3 that
possession was taken over on 06.01.2000 and
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handed over to the Engineering Section. It is
found in the mahazar that there existed a house
on the land. However, it is not known whether
the house was taken over and / or demolished.
In addition, the notice under Section 12(2) of
the BDA Act discloses that the land acquired
was garden land. The petitioner has claimed
that there are mango trees existing on the
property which are more than 25 to 30 years.
However, the Land Acquisition Officer has found
that the entire land is vacant. This apart, the
owner was not present and the details of the
witnesses is not forthcoming from the mahazar.
There are blanks in the mahazar making it
difficult to accept the sanity of this document.
The Apex Court has held in a catena of
decisions, the mode and manner of taking
possession and the latest in the long line of
judgments is in the case of N.A.L. LAYOUT
RESIDENTS ASSOCIATION Vs. BANGALORE
DEVELOPMENT AUTHORITY AND OTHERS
reported in AIR 2018 Supreme Court page 763.
14. The mother of the petitioner had
earlier challenged the acquisition of the land in
Writ Petition No.9932 of 2000 which was
ultimately rejected in terms of the order dated
02.07.2002 (Annexure 'R7'). It is found that the
respondent No.1 has denotified several parcels
of land from acquisition in Uttarahalli hobli.
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15. The respondent No.2 in its additional
statement of objections has placed on record
the details of land notified for formation of
Banashankari V stage and the status of the land
as on that date. The same is extracted below:
Sl.No. Details Acres-
Guntas
1 Built-up area 279-06
2 Deleted subsequent to the 58-03
orders in Writ Petitions
(Hon`ble High Court)
3 De-notified land 205-18
4 Layout formed by BDA 116-27
5 Government land 255-04
6 Land under litigation 544-03
Total notified land 1458-21
16. Section 16. Section 27 of the
Bangalore Development Authority Act, 1976
mandates the following:
"27. Authority to execute the scheme within
five years.-Where within a period of five years
from the date of the publication in the official
Gazette of the declaration under sub-section
(1) of section 19, the authority fails to
execute the scheme substantially, the
scheme shall lapse and the provisions of
Section 36 shall become inoperative."
17. In view of the statement made on
oath by respondent Nos.2 and 3 before this
Court by their additional statement of
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objections, it is clear that the respondent Nos.2
and 3 have not substantially implemented the
Scheme as mandated. The respondent No.2 has
claimed that 544.03 Acres of land was under
litigation and that it had formed a layout only in
respect of 116.27 Acres while more than 263
Acres was denotified from acquisition. The
respondent Nos.2 and 3 have not disclosed the
status of the litigation that afflicted 544.03
Acres of land and as to whether those lands
were available for development of the Scheme
or not. It is therefore evident that the
respondent No.2 and 3 have failed to
substantially implement the Scheme and thus,
have failed to comply with the mandate of
Section 27 of the BDA Act.
18. The Apex Court in the case of
OFFSHORE HOLDINGS (P) LTD. v. BANGALORE
DEVELOPMENT AUTHORITY while considering
the scope and ambit of Section 27 of the BDA
Act has held as follows:
"38. On a conjunctive reading of the
provisions of Sections 27 and 36 of the
State Act, it is clear that where a scheme
lapses, the acquisition may not. This, of
course, will depend upon the facts and
circumstances of a given case. Where, upon
completion of the acquisition proceedings, the
land has vested in the State Government in
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terms of Section 16 of the Land Acquisition
Act, the acquisition would not lapse or
terminate as a result of lapsing of the
scheme under Section 27 of the BDA Act. An
argument to the contrary cannot be accepted
for the reason that on vesting, the land stands
transferred and vested in the State/Authority
free from all encumbrances and such status of
the property is incapable of being altered by
fiction of law either by the State Act or by
the Central Act. Both these Acts do not
contain any provision in terms of which
property, once and absolutely, vested in the
State can be reverted to the owner on any
condition. There is no reversal of the title and
possession of the State. However, this may
not be true in cases where acquisition
proceedings are still pending and land has
not been vested in the Government in terms
of Section 16 of the Land Acquisition Act.
39. What is meant by the language of
Section 27 of the BDA Act i.e. "provisions of
Section 36 shall become inoperative", is that
if the acquisition proceedings are pending
and where the scheme has lapsed, further
proceedings in terms of Section 36(3) of the
BDA Act i.e. with reference to proceedings
under the Land Acquisition Act shall become
inoperative. Once the land which, upon its
acquisition, has vested in the State and
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thereafter vested in the Authority in terms of
Section 36(3); such vesting is incapable of
being disturbed except in the case where the
Government issues a notification for revesting
the land in itself, or a corporation, or a local
Authority in cases where the land is not
required by the Authority under the
provisions of Section 37(3) of the BDA Act."
(underlining supplied)
19. A Division Bench of this Court while
considering the case of acquisition of land for
formation of RMV II Stage in a judgment
rendered in the case of DR. A. PARTHASARATHY
AND OTHERS vs. STATE OF KARNATAKA AND
OTHERS in Writ Appeal Nos.5752 to 5756
connected with 6828 to 6832 of 2012 (disposed
off on 28.10.2015) had held that the Bangalore
Development Authority had failed to implement
the Scheme within the time allowed and
declared that the provisions of Section 36 of the
BDA Act are not applicable.
20. In our view, the learned Single Judge
has carefully considered the aforesaid facts and
has rightly come to the conclusion that the
respondent Nos.2 and 3 have failed to
implement the Scheme within the time allowed
and therefore, declared that the Scheme of
formation of Banashankari V stage in so far as
the land of the petitioner is concerned has
lapsed. The learned Single Judge also held that
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in view of the fact that the possession of the
land was not taken, the document under which
possession was taken was clearly nebulous. It is
necessary and pertinent to reiterate that once a
scheme sanctioned under Section 18 of the BDA
Act has lapsed under Section 27 of the BDA Act,
then the obvious corollary is that the provisions
of Section 36 of the BDA Act become
inoperative. Under the BDA Act, the land which
is acquired vests in the Government only upon a
notification under Section 16 of the Land
Acquisition Act, 1894 is issued. However, since
we have held that taking over of possession is
nebulous, the question of issuing a notification
under Section 16 of the Land Acquisition Act,
1894 would not arise. Hence, we hold that the
land acquired is not vested in the Government.
Therefore, the lapsing of the Scheme would
invariably result in the lapsing of the
acquisition. A Division Bench of this Court in the
case of ANTHONY REDDY AND ANOTHER vs.
STATE OF KARNATAKA AND OTHERS reported in
2019 (2) KLJ 629 while considering the
acquisition has also held that the lapsing of the
Scheme would result in lapsing of the
acquisition."
22. Applying the principles laid down by the
Division Bench of this Court to the case on hand wherein, the
subject matter of the land in the aforesaid appeal was land
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bearing Sy.No.89 of Uttarhalli village, in the vicinity of the land
belonging to the petitioner herein and therefore, I find force in
the submission of the learned counsel for the petitioner. It is
also pertinent to note that the subject matter of the land in WP
No.13374-75 of 2013 was land bearing Sy.No.83 and 84 of
Uttarhalli village, which the neighbouring land of the
petitioner,where the acquisition proceedings were dropped.
23. It is also relevant to mention that the
notification has been issued under Section 16 of the L.A. Act
and the mahazar said to have been drawn for having taken
possession produced by the petitioners at Annexure-P makes it
clear that the mahazar has been in the form of printed-
cyclostyle form, which does not indicate name and address of
witnesses and therefore, the submission made by the learned
Senior Counsel appearing for the respondent-authority cannot
be accepted. At this stage, it is relevant to draw the attention
of this Court to the judgment of this Court in the case of Dr.A.
Parthasarathy and others v. State of Karnataka, by its
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Principal Secretary5, wherein paragraph 10 and 11 reads as
follows:
"10. The facts in the case before the Apex Court
in the case of TAMIL NADU HOUSING BOARD v.
A. VISWAM6 were different from the facts of the
present case and as such, the ratio laid down in
the said judgment would not be applicable to
these cases. Possession of land so notified for
acquisition has to be taken in a proper and valid
manner. The findings recorded by the Learned
Single Judge, that there was no independent
witness which had signed the mahazar, nor the
names and addresses to show the identity of the
alleged witnesses was given, would be sufficient
to show that the 'mahazar' was not prepared in
a valid and legal manner. The same was done in
a mechanical manner on a cyclostyle form, and
the Learned Single Judge has rightly held that 'it
is hard to give any credence to such mahazar'.
Learned Counsel for respondents has also not
denied the fact that no notice was ever given to
the appellants for handing over possession and
straight away the 'mahazar' had been prepared,
the authenticity of which is extremely doubtful.
11. Besides this, the other facts as
noticed by the Writ Court, are also very relevant
and have not been disputed by the parties. The
5
ILR 2017 KAR 3489
6
AIR 1986 SC 3377
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appellants had been depositing betterment
charges and property tax relating to the land in
question till the year 2007. The building plan on
the schedule property had also been sanctioned
by the concerned authority. The BDA itself had
passed a resolution on 24.9.1992 to denotify the
lands of Sy.No.4 belonging to the appellants,
from acquisition. The Joint Director of Town
Planning of the BDA had also, on 13.1.1993,
certified that there existed residential building,
with wells and pump house as well as trees
standing on the said land. The said Authority
also stated that the BDA would have no
objection in the land being developed by the
appellants for residential purpose. The BDA had
gone to the extent of passing a resolution
requesting the State Government to denotify the
acquisition of Sy.No.4 belonging to the
appellants. All this would clearly go to show that
possession of the land remained with the
appellants and that BDA was not inclined to
utilize the land of the appellants to the purpose
of its scheme.
24. On similar lines, the Division Bench of this
Court in the case of Bengaluru Development Authority and
others v. Hanumanthappa and others (2023:KHC:
8944:DB) has held that, when mahazar is in cyclostyle pro-
forma and same does not indicate name and addresses of
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witnesses, same cannot be a basis to arrive at a conclusion
that the possession of the land is taken and therefore, I find
force in the submission made by the learned counsel appearing
for the petitioner that the relief sought for in the writ petition is
to be accepted. In the result, I pass the following:
ORDER
i) The writ petition is allowed.
ii) Preliminary Notification dated 29.12.1988
under Section 17(1)of BDA Act (Annexure-B)
and Final Notification dated 17.09.1997
(Annexure-K) under Section 19(1)of BDA Act
insofar as the land in question is concerned, is
hereby quashed and all further proceedings by
the respondent-BDA are hereby quashed and
all further action of the respondent-BDA
relating to land in question is void and hereby
quashed, as contrary to law as per the
declaration of law made by this Court and the
Hon’ble Supreme Court referred to above.
iii) The respondent No.2 is hereby directed to
issue No Objection Certificate in respect of the
suit schedule property.
Sd/-
(E.S. INDIRESH)
JUDGE
SB/YAN
Ct: ANB, List No.: 19 Sl No.: 3
