Allowed

Mohammed Ghouse v. Bangalore Development Authority

Karnataka HC23 Apr 2014WP/14785/2013

Case brief

AI extract

What is this about?

Allowed the writ petition directing the petitioner to submit documents proving continuous possession and pre-existing structures. Directed the BDA to recommend withdrawal of petitioners land from acquisition proceedings if conditions are met, and ordered the BDA to act expeditiously within three months of receiving the order.

What did the court decide?

Petition allowed. Liberty to furnish documents proving pre-existing structures and continuous possession. BDA directed to recommend withdrawal if facts established; to act expeditiously within three m

Mohammed Ghouse Vs Bangalore Development Authority — Land Acquisition | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 23^RD DAY OF APRIL 2014

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BEFORE

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THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

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WRIT PETITION No.14785 OF 2013 (LA-BDA)

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BETWEEN:

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Mohammed Ghouse, Son of Mohammed Bhuran, Aged about 67 years, Residing at Kacharakanahalli Village, Kasaba Hobli,

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Kalyananagar Post, Bangalore – 560 084.

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…PETITIONER

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(By Shri. Jayakumar S Patil, Senior Advocate for Shri. Shashidhara .R, Advocate)

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AND:

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Bangalore Development Authority, Represented by its Commissioner, Kumara Park West, Bangalore – 560 020.

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Assistant Executive Engineer, South Sub-Division, H.R.B.R. Layout,

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Bangalore – 560 102.

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The State of Karnataka, Represented by its Principal Secretary, Urban and Housing Development Department, M.S.Building, Dr. Ambedkar Veedhi, Bangalore – 560 001.

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…RESPONDENTS

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(By Shri. C.R. Gopalaswamy, Advocate for Respondent Nos. 1 and 2

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Shri. H. Anantha, Government Pleader for Respondent No.3)

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This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to declare that the respondents have no right what so ever over the petition schedule property comprised in Sy.No.195 measuring to an extent of 2 acres 16 guntas situated at Kacharakanahalli Village, Kasaba Hobli, Bangalore North Taluk.

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This Writ Petition coming on for Hearing this day, the court made the following:

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O R D E R

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Heard the learned Senior Advocate Shri Jayakumar S

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Patil, appearing for the Counsel for the petitioner and the

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learned Counsel for the respondent as well as the learned Government Pleader.

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The brief facts are as follows:

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The land bearing Survey No.195 measuring 2 acres and 16 guntas including 6 guntas of kharab of Kacharakanahalli Village, Kasaba Hobli, Bangalore North Taluk, belonged to one Kutty, who had bequeathed said lands in favour of one Kuppamma and Parvathiamma, who were the wives of Kutty, under a will dated 6.6.1936. The names of the wives of Kutty were reflected in the revenue records. They, in turn, had sold the same under a registered sale deed dated 8.4.1974 in favour of the petitioner. The petitioner, along with his wife and seven children were all dependant on the said property for their livelihood. The lands were within the Grama Thana limits and ultimately developed into two industrial sheds with 50 to 100 employees working in the said industry. The petitioner claims that there are no other lands or no other source of income except the earnings from the industrial work carried on in the industrial sheds.

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It is the case of the petitioner that in the year 1985, the Bangalore Development Authority (BDA) had sought to acquire the land by recourse to the provisions of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the ‘BDA Act’, for brevity) and a notification was issued on 9.1.1985. However, it is pointed out that the petitioner was not notified and the final notification was issued on 15.5.1987 and apparently it is sought to be made out that other procedures had also been completed and a notification under Section 16(2) of the LA Act had been issued. However, it is the case of the petitioner that he has remained in undisturbed possession along with his family of the said property and the industrial sheds have also not been disturbed. Though the acquisition proceedings are of the year 1985, no further development has taken place in the land in question. In that regard, the petitioners had filed applications before the respondent – authority to consider the deletion of the lands from the acquisition proceedings since the same have not been utilised

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for the formation of any layout and in the absence of any such development, the scheme, pursuant to which the acquisition was made, would have lapsed.

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In this regard, the BDA is said to have passed a resolution recommending that the lands be deleted from the acquisition proceedings on 26.11.1988, on an undertaking by the petitioner that a portion of the property, which was earmarked for the formation of a road in the originally envisaged plan, would be given up by the petitioner. Though the petitioner had given up a portion of the land for the formation of the road, in the expectation that the remaining extent of land would be given up from the acquisition proceedings, the BDA took a divergent stand on the ground that the policy decision had been taken subsequently not to delete any such lands from the acquisition proceedings. In that background, the petitioner had approached this court by way of a writ petition in WP 12024/2006 and this court, by its order dated 17.6.2008, had directed that the petitioner approach the

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BDA with a recommendation seeking that the lands be withdrawn from the acquisition proceedings and such a representation has been made. However, it transpires that an endorsement was issued to state that the petitioner’s land could not be deleted from the acquisition proceedings and since there was a policy decision as well as the land already having been notified under section 16(2) of the LA Act, the question of withdrawing from the acquisition proceedings would not arise. It is in this background that the petitioner had made a further representation indicating that the lands, which were also indicated as being part of the lands, which were taken possession in terms of the notification issued under section 16(2) of the LA Act, had been withdrawn from the acquisition proceedings, as is evident from the record and therefore, the petitioner had made a further representation to the respondent - BDA to reconsider its decision. The BDA not having taken any further steps on that representation, the present petition is filed.

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The learned Senior Advocate would submit that

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notwithstanding that the petitioner’s lands are indicated in the notification under Section 16(2) of the LA Act, the same is apparently misleading and he would point out from the record maintained by the State Government that there are several instances where the lands, which were also subject matter of the notifications under section 16(2), have been reconsidered on spot inspection and on ascertaining that the land owners or occupiers have been in continuous possession and that it could not be suitably integrated into a layout that is to be formed and the BDA has taken a decision to recommend such lands for withdrawal from acquisition proceedings and this is part of the record, which is now secured by the Government Pleader. Particular reference is drawn to proceedings in respect of the land in Survey Nos.134 and 136, which is the subject matter of notification dated 24.7.2010 and the land in Survey No.222 of Kacharakanahalli village which is the subject matter of notification dated 13.1.2010. Insofar as the present petitioner’s

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land is concerned, attention is drawn to a spot inspection where a note is made of several structures existing, including the industrial sheds, which the petitioner has referred to and therefore, if the petitioner also is similarly placed as those land owners and if the petitioner is in a position to establish that he has been in continuous possession and that structures were existing even prior to the preliminary notification itself, it is a fit case where the petitioner’s case ought to be considered for withdrawal from the acquisition proceedings.

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While the learned Counsel for the BDA would stoutly

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resist the petition and would submit that from the record, it is evident that the acquisition proceedings are completed in all respects. A notification under section 16(2) of the LA Act is one such document which would indicate that there is finality to the proceedings. If possession has been taken of the land in question, the question of withdrawing from the acquisition proceedings at this stage would not arise. The land would have vested in the State and therefore, it is not conceivable that any

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such withdrawal from acquisition would be contemplated and hence seeks dismissal of the petition on that short ground.

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However, the learned Senior Advocate would point out

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that this was the case in respect of other lands as well and it is on appreciation of the ground realities that the BDA has recommended for withdrawal from the acquisition proceedings and the State has taken appropriate measures. Therefore, the petitioner’s case not being considered would result in an arbitrary treatment and hence, seeks that there be reconsideration of the petitioner’s case.

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Therefore, given the above circumstances, if the petitioner continues in possession of the land in question and if there are structures existing even prior to the notification of the acquisition proceedings, it is a question of fact which requires to be ascertained, though the learned Counsel for the BDA has also asserted that the structures that are existing are apparently put up subsequent to the acquisition proceedings surreptitiously and behind the back of the BDA and hence could not be a

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ground for reconsideration of the petitioner’s case. Therefore, if the petitioner is in a position to demonstrate that he has been in continuous possession even prior to the acquisition proceedings and structures that were put up were even prior to the acquisition proceedings, the petitioner is certainly entitled to be considered on par with other land owners, whose lands have been recommended for deletion from the acquisition proceedings, on the ground that they have been in continuous possession and the land in their occupation cannot be integrated in the layout that may have been formed.

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Accordingly, the petition is allowed with liberty to the petitioners to make a fresh representation and furnish all documents in his possession to demonstrate that there are structures existing on the land in question and that such structures have been put up even prior to the initiation of the acquisition proceedings and that the petitioner has remained in continuous possession of the land in question and if the BDA should come to the conclusion that it is indeed so and that the

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land cannot be integrated in the formation of the layout, it can recommend the lands of the petitioner for withdrawal from the acquisition proceedings to the State Government and it is for the State Government to take action thereon.

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It is also necessary to point out that the petitioner has been continuously agitating for appropriate relief and since the matter stands in a state of flux even today, it is appropriate that there be expeditious consideration of the petitioner’s case. Therefore, the BDA shall take appropriate steps and pass orders expeditiously, in any event, within three months from the date of receipt of a copy of this order.

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Sd/-

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JUDGE

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Mohammed Ghouse v. Bangalore Development Authority

Case brief

What is this about?

What did the court decide?

Mohammed Ghouse v. Bangalore Development Authority

Case brief

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