Allowed

Sri L Krishnappa v. the Commissioner

Karnataka HC10 Apr 2014WP/7218/2014

Case brief

AI extract

What is this about?

The High Court held that the land acquisition scheme by BDA for Venkateshwara Layout had lapsed under Section 27 of the BDA Act due to non-implementation. Consequently, the acquisition proceedings concerning the petitioners' lands were quashed, dismissing the respondents' plea of delay.

What did the court decide?

It is declared that the Scheme is deemed to have lapsed. Consequently, the acquisition proceedings insofar as they pertain to the petitioners' lands are quashed.

Sri L Krishnappa Vs the Commissioner — Land Acquisition | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 10^TH 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.7218 OF 2014 (LA-BDA)

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BETWEEN:

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Sri. L. Krishnappa, Son of Late Lankappa, Aged about 48 years,

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Smt. Saraswathamma, Wife of L. Krishnappa, Aged about 40 years,

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Sri. Ananda, Son of L. Krishnappa, Aged about 15 years,

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Sri. Ashoka, Son of L. Krishnappa, Aged about 15 years,

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Sri. Ajay, Son of L. Krishnappa, Aged about 11 years,

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Petitioner 4 and 5 are minors, Represented by their father

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And natural guardian,

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Smt. L. Yashodha, Wife of Late Nagaraju, Aged about 32 years,

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Kum. Chayadevi, Daughter of Late L. Nagaraju, Aged about 13 years,

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Kum. Chaithra, Daughter of Late L. Nagaraju, Aged about 11 years,

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Master Chandan Kumar, Son of Late Nagaraju, Aged about 9 years,

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Petitioners 7 to 9 are minors Represented by their mother and Natural guardian, Smt. L. Yashodha.

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All the above petitioners residing at Their Common Address, Residing at No.522, Panthara Pallaya, Mysore Road, Bangalore -560 039.

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All the petitioners are represented By their common General Power of Attorney Holder Sri. M. Karthik, Son of Sri. D. Muniraju, Aged about 19 years, Residing at Krishna Form,

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Srinivasapura Village, Uttarahalli, Kengeri Road, Uttarhalli Hobli, Bangalore South Taluk, Bangalore Urban District.

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…PETITIONERS

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(By Shri. R. Hemanth Raj, Advocate )

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AND:

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The Commissioner, Bangalore Development Authority, Kumarapark West, Bangalore – 560 020.

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The Additional Special Land Acquisition Officer, Bangalore Development Authority, Kumarapark West, Bangalore – 560 020.

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

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…RESPONDENTS

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(By Shri. Bipin Hegde, Advocate for Respondent Nos. 1 and 2 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 Development Scheme prepared by the BDA for formation of “Venkatheshwara Layout” in Nayandahalli Village vide

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Notification dated 17.11.1988 vide Annexure-C and the declaration dated 30.11.1990 vide Annexure-D has lapsed as contemplated under Section 27 of the BDA and as well as under right to fair compensation and transparency in Land Acquisition, rehabilitation and resettlement Act 2013 in so far as the petitioners schedule lands is concerned 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 the learned Counsel for the petitioners and the

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learned Counsel for the respondents.

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It is the case of the petitioners that they are the owners

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in possession of land measuring 1 acre in survey No.25/2 of Nayandahalli, Kengeri Hobli, Bangalore South Taluk. It is said to be the ancestral property of the petitioners and that as on the date of the petition, they continue to be in possession of the said land. The petitioners have produced documents to substantiate their claim. The second respondent Bangalore Development Authority (BDA) is said to have issued notifications under the provisions of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the ‘BDA Act’, for brevity),

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proposing to acquire the said property, apart from other properties for the formation of a layout known as Venkateshwara Layout. It is the case of the petitioners that their land was notified, in that, the name of the father of the first petitioner and the father in law of the sixth petitioner was incorrectly mentioned and the name of the grand father of other petitioners has also been incorrectly mentioned and there were no individual notices issued to khatedars of the said acquisition. A final notification however, was issued on 30.11.1990. Though the notifications were issued, the BDA never took possession of the lands and never formed a layout and not a single site was formed and allotted to any third-party. In other words, the entire Scheme had failed and the BDA had not implemented the Scheme and hence, it is contended that in terms of Section 27 of the BDA Act, the entire scheme has lapsed and the acquisition proceedings are void and ought to be quashed.

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The BDA has entered appearance and filed statement

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of objections to contend that the present writ petition would have to be dismissed on the preliminary ground that it is barred by delay and laches. The preliminary notification, admittedly, is of the year 1988 and the present petition is filed

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in the year 2014. Therefore, even if the scheme had lapsed five years after the final notification, which was of the year 1990, the petitioners cannot at this point of time seek a declaration to the effect that the Scheme has lapsed and hence the petition ought to be dismissed. While also contending that it is incorrectly stated by the petitioners that possession had not been taken, but on the other hand, the BDA had taken possession of the entire extent of 137 acres and 8½ guntas in accordance with law as on 11.11.1993 itself and had taken up implementation of the work. Hence, the learned Counsel seeks dismissal of the petition.

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The learned Counsel for the petitioner by way of reply, would submit that except to state that the respondents

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had taken possession of the land, in the year 1993, no material is produced such as mahazar, in having taken possession of the petitioners’ land. In the face of the circumstance that there were other land owners, who had similarly challenged the very notifications on the ground that the same had lapsed, this court has allowed the same, as for instance in a writ petition in WP 20395/2006 dated 3.10.2012, produced as Annexure –F to the petition. Further, it is pointed out that insofar as the contention that the petition is barred by delay and laches is concerned, it would not advance the case of the respondents as the very ground on which the present petition is filed, namely, that the Scheme has lapsed on account of the same not having been implemented within the period of five years from the date of the final notification, would indicate that such prayer can only be atleast after five years from the date of the final notification. Hence, if the petitioners have remained in possession undisturbed over a decade and have now sought a declaration that the Scheme has lapsed, it is all the more reason to allow

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the petition, as even after lapse of five years and more, the BDA has not chosen to take any steps in respect of the same. Even if possession had been taken and the same had vested in the State Government, the State Government not also having chosen to take any further steps, the entire Scheme has lapsed and in the absence of material to substantiate the taking of physical possession of the land, in the face of contra material available on record, to indicate that the petitioners have continued in possession, the petition would have to be allowed.

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Given the above facts and circumstances, insofar as the contention regarding delay and laches is concerned, which may not be material if there were third-party interests involved or by virtue of certain action taken by the BDA, the petitioner was estopped in law or in fact from raising any claims over the land in question. In the present circumstances, admittedly, there is no averment in the statement of objections as to the implementation of the Scheme. The only statement is that the

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development work has been taken up. There is not even an attempt to indicate the extent of development that is taken up. Insofar as the taking of possession of the land itself is concerned, as pointed out by the learned Counsel for the petitioners, there is no material on record. Therefore, it cannot

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be said that taking of possession of the land in question is established by the BDA as there is also no material to show that there has been any kind of development over the land in question. This circumstance having been noticed in other cases by this court, the petition would have to be allowed since the Scheme is deemed to have been lapsed.

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Accordingly, it is declared that the Scheme, pursuant to which, the acquisition proceedings were initiated, is deemed to have lapsed by virtue of the rigour of Section 27 of the BDA Act. Consequently, the acquisition proceedings in so far as

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they pertain to the petitioners’ lands are concerned, stand quashed.

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Sd/JUDGE

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Sri L Krishnappa v. the Commissioner

Case brief

What is this about?

What did the court decide?

Sri L Krishnappa v. the Commissioner

Case brief

What is this about?

What did the court decide?

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