Allowed

Sri a M Muniraju v. State of Karnataka

Karnataka HC21 Apr 2014WP/5507/2014

Case brief

AI extract

What is this about?

A writ petition seeking the quashing of land acquisition proceedings due to the lapse of the acquisition scheme under Section 27 of the BDA Act. The court held that delay and laches were not bar due to the BDA's failure to implement the scheme and flaws in the evidence of possession, allowing the petition and quashing the acquisition.

What did the court decide?

The petition allowed; acquisition proceedings in respect of the petitioner's land quashed; scheme declared not substantially implemented.

Sri a M Muniraju Vs State of Karnataka — Land Acquisition | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 21^ST 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.5507 OF 2014 (LA-BDA)

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BETWEEN:

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Sri. A.M. Muniraju, Aged about 65 years, Son of Late Sri. Muthappa, Residing at Krishnappa Layout, Arekere Village, Begur Hobli, Bangalore South Taluk, Bangalore – 560 076.

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…PETITIONER

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(By Shri. Madhusudhan R Naik, Senior Advocate for Shri. Ramesh K.L., Advocate )

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AND:

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State of Karnataka, Represented by its Secretary to Government, Department of Housing and Urban Development, Bangalore – 560001.

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The Commissioner,

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Bangalore Development Authority,

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T. Chowdaiah Road, Kumara Park West, Bangalore – 560 020.

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Additional Land Acquisition Officer, Bangalore Development Authority, Bangalore – 560 020.

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…RESPONDENTS

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(By Shri. H. Anantha, Government Pleader for Respondent No.1

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Shri. G. Lakshmeesh Rao, Advocate for Respondent Nos. 2 and 3)

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This Writ Petition filed under Articles 226 and 227 of the Constitution of India praying to direct the respondents not to enforce the scheme called BTM Layout 6^th stage as against land bearing Sy.No.21/[1C2] measuring 28 guntas of Hulimavu Village, Begur Hobli, Bangalore South Taluk morefully described in the schedule in view of lapsing of acquisition in terms of section 27 read with Section 36 of the Bangalore Development Authority Act, 1976 based on the judgment of the Hon’ble Supreme Court in Offshore Holdings Private Limited Vs. Bangalore Development Authority, reported in [2011] 3 SCC 139 para 124 and etc;

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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 Shri Madhusudan R Naik, learned Senior Counsel appearing for the Counsel for the petitioner and the learned Counsel for the respondent – Bangalore Development Authority as well as the learned Government Pleader, who takes notice for

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respondent no.1.

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The facts are as follows:

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The petitioner claims to be an absolute owner in possession of land bearing Survey No.21/1C2 measuring 28

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guntas of Hulimavu village, Begur Hobli, Bangalore South Taluk. The land was notified for acquisition in the name of one H.R.Jayaramappa, the erstwhile owner of the land from whom the petitioner had purchased the land, under a sale deed dated 14.9.1981, under the provisions of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the ‘BDA Act’, for brevity). A preliminary notification under Section 17 of the BDA Act was issued on 8.9.1987 and the final notification followed on 28.7.1990, in respect of an extent

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of 1 acre 4 guntas, which was the extent held by Jayaramappa, out of which, the petitioner had purchased 28 guntas of land. Since the petitioner was not served with any notice of acquisition, even though the revenue records were mutated in the name of the petitioner to the extent of 28 guntas. The petitioner had not filed any objections to the notifications. Though a notification under Section 16(2) of the Land Acquisition Act, 1894 (Hereinafter referred to as the ‘LA Act’, for brevity) was published on 30.1.1992, 16.6.1994 and 27.10.1994, the petitioner’s extent of land has not been notified in any of those notifications. It is the case of the petitioner that the entire extent of land acquired for the purpose of formation of BTM VI Stage Layout was measuring 388.09 acres and the BDA has not developed the same, except for an extent of 31.02 acre, where there is half-hearted development and that the petitioner remains untouched, in that, the possession has not been taken nor has there been development over the said land. It is on that short ground that the petitioner

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is before this court, contending that over time, the petitioner has been making repeated representations to the State Government and the BDA, to withdraw from acquisition insofar as the petitioner’s land is concerned, though there have been notifications issued in respect of several parcels of land in and around the vicinity of the petitioner’s land. The petitioner has been given an arbitrary treatment over the years and it is after a futile weight for over two decades, that the petitioner has resorted to approach this court, seeking a declaration that the Scheme has lapsed in view of Section 27 of the BDA Act. And the petitioner, therefore, contends that since the Scheme has admittedly not been implemented substantially, the rigour of Section 27 of the BDA Act would apply and hence, the petition may be allowed.

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It is brought to the attention of this court that there were other lands which were similarly placed and which were the subject matter of writ petitions in WP 17421-32/2012 and connected cases, disposed of by a common order dated

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16.12.2013, whereby the very Scheme has been addressed and

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it is held that the same has lapsed by virtue of the Scheme not having been implemented substantially.

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The learned Counsel for the respondents, on the other

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hand, would vehemently oppose the petition and would seek to

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point out that possession has been taken of the land in question and even if it is held that the Scheme has lapsed, the acquisition would not and therefore, contends that any earlier decisions of this court to the effect that the Scheme has lapsed would have no bearing, as possession has been taken. Secondly, it is pointed out that the petitioner’s alleged weight for almost two decades before approaching this court, would not explain the inordinate delay and it would not be available to the petitioner to contend that the delay be condoned on that count and the prayer for declaration that the Scheme has lapsed be considered. This is impermissible in law and the petition ought to be dismissed on the ground of delay and laches alone, without entering upon other contentions.

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In the above circumstances, the question is whether the

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petition ought to be rejected on the ground of delay and laches. Normally, the delay would be a ground on which the petition could be rejected. However, since the very declaration sought is on the footing that the Scheme, pursuant to which, the proceedings were initiated has not been substantially implemented, the cause of action for such a relief would arise only after the expiry of five years from the date of final notification and if this is taken into account and the fact that the petitioner has been making repeated attempts to seek withdrawal from the acquisition proceedings in respect of his land and each time that other lands were so withdrawn from the acquisition proceedings, the hopes of the petitioner were kept alive. This would explain the reluctance with which the petitioner had approached this court. Hence, the question of delay cannot be a ground, on which the petition can be rejected, especially, in the face of the circumstance that the BDA had not chosen to implement the Scheme even after

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several decades after the final notification. In so far as the contention that possession is taken is concerned, is also with reference to the nebulous document, which is styled as a mahazar and from the perusal of the same, it is evident that it is a cyclostyled document, with blanks filled in laconically and in

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a manner, which does not identify the witnesses nor the particulars of the manner in which possession has been taken.

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Significantly, the owner of the land is not notified nor

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is it recorded that there was reluctance on the part of the owner to endorse the fact that possession was being taken. This is crucial and if it is to be established by virtue of the said document, the physical possession has been taken. It would be necessary for the witnesses indicated in the document to be examined and in the absence of their identity in so far as their parentage, addresses etc., it would be impossible for this court to accept the said document as proof of having taken physical possession, which is a crucial aspect, which is ignored, time and again in innumerable cases before this court, by the BDA in so

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far as seeking to establish taking of physical possession. It is a very crucial aspect in acquisition proceedings. Therefore, on both counts, the BDA would not be in a position to resist the petition.

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The petition is allowed in the face of the circumstance that the Scheme has not been substantially implemented and it is so declared. The acquisition proceedings in so far as the petitioner’s land is concerned, stand quashed.

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Sd/JUDGE

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Sri a M Muniraju v. State of Karnataka

Case brief

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Sri a M Muniraju v. State of Karnataka

Case brief

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