Allowed

The Bangalore Development Authority v. Sri. R. Narayana Prasad

Karnataka HC4 Feb 2021WA/2500/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal against an order quashing land acquisition proceedings. Relying on the SC judgment in Indore Development Authority, the Court held that since possession was formally taken, deemed lapse under Section 24(2) LA Act 2013 is inapplicable. The appellant's appeal was thus allowed.

What did the court decide?

The order dated 5.7.2017 passed by the learned Single Judge in WP.2262/2016 setting aside the acquisition proceedings is set aside.

The Bangalore Development Authority Vs Sri. R… — Landlord and Tenant | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 04^TH DAY OF FEBRUARY, 2021

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PRESENT

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THE HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA

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AND

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THE HON'BLE MR. JUSTICE V.SRISHANANDA

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WRIT APPEAL NO.2500/2018 (LA-BDA)

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BETWEEN:

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THE BANGALORE DEVELOPMENT AUTHORITY

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T.CHOWDAIAH ROAD,

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KUMARA PARK WEST EXTENSION,

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BANGALORE 560 020.

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REPRESENTED BY ITS COMMISSIONER.

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THE ADDITIONAL LAND ACQUISITION OFFICER THE BANGALORE DEVELOPMENT AUTHORITY, T.CHOWDAIAH ROAD, KUMARA PARK WEST EXTENSION, BANGALORE 560 020.

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APPELLANTS 1 AND 2 ARE REPRESENTED BY M.S.N.BABU (LAO) ...APPELLANTS

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(BY SRI.BIPIN HEGDE, ADVOCATE)

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AND:

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SRI R.NARAYANA PRASAD, S/O LATE RANGAIAH, AGED ABOUT 74 YEARS, R/AT NO.1955, 8^TH MAIN, JUDICIAL LAYOUT, GKVK POST, BANGALORE 560 055.

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STATE OF KARNATAKA, DEPARTMENT OF URBAN DEVELOPMENT, VIKASA SOUDHA, DR.AMBEDKAR VEEDHI, BANGALORE 560 001. BY ITS SECRETARY. ... RESPONDENTS

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(BY SRI.C.M.NAGHABUSHANA, FOR SRI.UDAY K.S. ADVOCATE FOR C/R1, SRI.S.S.MAHENDRA, AGA FOR R2)

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THIS APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 5.7.2017 PASSED BY THE LEARNED SINGLE JUDGE IN WP.2262/2016 AND DISMISS THE WRIT PETITION 2262/2016 FILED BY RESPONDENT NO.1 AND ETC.

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WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, THIS DAY SATISH CHANDRA SHARMA J., PRONOUNCED THE FOLLOWING:

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JUDGMENT

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The present writ appeal is arising out of the order dated 5.7.2017 passed in WP.No.2262/2016 (Sri R.Narayana Prasad vs. The State of Karnataka and Ors., ).

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The facts of the case reveal that respondent No.1 (writ petitioner) has filed a writ petition before this Court for quashment of the preliminary notification published in the official gazette dated 25.8.1977 issued under Section 17(1) of the Bangalore Development Authority Act, 1976 (‘BDA Act’ for short) as well as final notification gazetted on 10.5.1978 in respect of land acquisition. A further prayer was made for issuance of a declaration declaring that the preliminary notification and the final

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notification as per Annexures ‘A’ and ‘B’ in the writ petition in respect of the schedule property i.e., Sy.No.329/3 (Old Sy.No.158/3) of Kempapura – Agrahara Village, Yeshwanthpura Hobli, Bangalore North Taluk, as lapsed. Respondent No.1 also sought for issuance of a direction directing the Bangalore Development Authority not to interfere with the peaceful possession and enjoyment of the property in question.

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The facts of the case reveal that the land bearing Sy.No.329/3 (old Sy.No.158/3) ad measuring 2 acres and 2 guntas situated in Kempapura Agrahara village, Bangalore North Taluk was owned and possessed by Sri B.Rangaiah, the father of respondent No.1 and Sri Rangaiah acquired title and interest over the said property by an order of the Special Deputy Commissioner for Inams dated 24.5.1965 passed in Case No.440/1959-60.

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Respondent No.1 being the son of B.Rangaiah thereafter became owner of the land and a notification was issued on 30.7.1977 under Section 17(1) of the BDA Act and a final notification was issued under Section 19(1) of the BDA Act on 02.03.1978 acquiring the land bearing Sy.No.329/3. The facts further reveal that an award was passed by the Special Deputy Commissioner on 25.10.1980 after following due process of law

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and possession of the land was taken and handed over to the Engineering Section of BDA on 28.11.1980. The kathedar did not claim compensation and the amount was kept in the Revenue Deposit Account of the Bangalore Development Authority for disbursement. The fact of taking possession was also notified under Section 16(2) of the Land Acquisition Act, 1894 and the acquisition proceedings have attained finality and the land has vested in the State.

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Respondent No.1 being aggrieved by the land acquisition proceedings came up before this Court by filing a writ petition and the same was registered as WP.No.1882/1986. It was withdrawn by respondent No.1. No liberty was granted at any point of time to file a fresh writ petition.

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The facts further reveal that respondent No.1 has also preferred a civil suit claiming possession of land, meaning thereby indirectly challenging the land acquisition proceedings i.e., OS.No.1005/1988 and OS.No.2519/2000 and also preferred writ petitions in WP.Nos.19885/1986 and 20892/1986. The other important aspect of the case is that this Court in RFA.No.646/2001 has set aside the judgment of the trial Court, on the basis of which the claim was being made over the property

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in question stating that respondent No.1 is having a title on the basis of adverse possession. The facts further reveal that respondent No.1 before this Court took a stand before the learned Single Judge that the Scheme has not been implemented within five years as per Section 27 of the BDA Act and therefore, the Scheme itself has lapsed.

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The learned Single Judge after hearing the parties at length has allowed the writ petition and paragraphs 4 to 8 of the order passed by the learned Single Judge read as under:

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“4. It cannot be disputed that the land owner cannot be deprived of his land without paying due compensation as per law nor can he be made to indefinitely wait for receiving the compensation. It is in this background, provision has been made under Sections 30 and 31 of the Act enjoining the competent authority to pay compensation to the persons entitled for compensation as per the award unless prevented by certain contingency such as dispute regarding title to receive compensation or with regard to apportionment of the same, in which event, the collector is required in law to deposit the amount of compensation before the Court to which reference under Section 18 of the Act would be submitted. In the instant case, the land acquisition officer has not deposited the amount of compensation before the Civil Court. Indeed it is not the case of the BDA that as there was some dispute with regard to the entitlement of petitioner, they were unable to disburse the amount.

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Nothing is also stated as to what prevented the BDA from depositing the amount before the Civil Court. It emerges that despite lapse of nearly 40 years from the date of final declaration acquiring the land, the BDA has not paid compensation to the land loser who is an innocent citizen. The acquisition proceedings have not been completed as no compensation is paid to him. Therefore, it emerges that the BDA for whose benefit the land is acquired has not acted in a reasonable manner in completing the acquisition proceedings.

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5. It is well established by a catena of decisions in the cases of RAM CHAND & OTHERS VS UNION OF INDIA & OTHERS – (1994)1 SCC 44 ; and SMT. ANDALAMMA VS STATE OF KARNATAKA & OTHERS – 2002(4) KCCR 236 that the authority who is vested with a power has to act in a reasonable manner while exercising the power. Reasonable exercise of power includes exercise of the same within a reasonable period. If the award is not passed within a reasonable period, the acquisition proceedings stand lapsed and shall be treated as having been abandoned. In the instant case, though the award has been passed within a reasonable period i.e., within a period of two years from the date of final declaration, the fact remains that without any justification, for the last nearly 39 years compensation has not been paid to the land owner. There is no material placed before the Court to show that though the amount of compensation was offered to the petitioner he has deliberately refused to receive the same or omitted to receive the same. In such circumstances, if petitioner is now asked to take the compensation along with interest as is provided under

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Section 34 of the Act, then, it would tantamount to forcing the petitioner to receive the market value of the land as obtained during the year 1977, to be precise, as on 25.08.1977 when the preliminary notification was published in the gazette after 40 years. This consequence cannot befall on him for no fault on the part of petitioner. It is for this reason, the principle of law, well enunciated in several decisions, has emerged to the effect that if the acquiring body fails to discharge its duties to ensure completion of acquisition proceedings within a reasonable period, the acquisition shall stand lapsed. The acquisition proceedings cannot be said to have completed until the acquiring body discharges its duties as enjoined under the provisions of the Bangalore Development Authority Act or the Land Acquisition Act as may be applicable.

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6. In the instant case acquisition is for the benefit of the BDA. The BDA is enjoined in law as per Sections 30 and 31 of the Act which is made applicable to the acquisition under the BDA Act to deposit the compensation before the Civil Court in case there is any dispute regarding entitlement and if there is no dispute regarding entitlement it goes without saying that the BDA is under an obligation to pay compensation to the persons entitled soon after passing of the award by issuing notice of award and calling upon him to receive the compensation. Indeed, as per Sections 36 of the BDA Act, provisions of Land Acquisition Act are made applicable for acquisition under the BDA Act insofar as they are applicable. As regards passing of the award and payment

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of compensation, no separate provisions are made under the BDA Act.

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7. Hence, contention urged by the learned counsel appearing for the BDA – Sri G. Lakshmeesh Rao that the right of the land owner is only to seek interest for the delayed period in paying the compensation as per Section 34 of the Act and not to seek a declaration that the acquisition proceedings have lapsed because of nonpayment of compensation, cannot be countenanced. It is not the case of the BDA that compensation was deposited and possession was taken over and that the land was utilised for formation of sites in Chandra Layout for which the land was notified for acquisition. Though it is contended by the learned counsel for the BDA that notification under Section 16(2) of the Act was issued and possession of land has been taken over by drawing up mahazar, fact remains that the land has not been utilized for the purpose of formation of layout for which it was notified. Even the submission made stating that actual possession of the land had been taken over is belied by the judgment and decree passed in RFA.No.646/2001 disposed of on 16.09.2004 which is produced at Annexure-F. As is evident from the said judgment, decree of injunction granted in favour of petitionerlandowner restraining the BDA from dispossessing the petitioner is confirmed reserving liberty to the BDA to dispossess the petitioner only in accordance with law and in the manner known to law. It is apparent from the said judgment which is passed in the RFA filed by the BDA that assertions made by the BDA that it had taken over possession of the land from the petitioner has been

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negatived and the BDA was restrained from illegally dispossessing the petitioner. Even after this judgment passed in the year 2004, the BDA has neither paid the compensation, nor taken over possession of the land in the manner known to law. Therefore, it is apparent that the acquisition proceedings have not been completed and the land has not been made use of for the purpose for which it was acquired.

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8. Hence, this petition is allowed. Acquisition proceedings in the instant case are declared as lapsed.”

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Heard the learned counsel for the parties at length and then perused the records.

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The controversy involved in the present case stands concluded on account of the judgment delivered by the Constitutional Bench of the Hon’ble Supreme Court in SLP (C) Nos.9036-9038/2016 in the case of Indore Development Authority vs. Manoharlal & Ors., Etc. . The Hon’ble Supreme Court vide judgment dated 6.3.2020 in paragraph 363 has held as under:

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“363. In view of the aforesaid discussion, we answer the questions as under:

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1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1.1.2014 the date of commencement of Act of 2013, there is no lapse of

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proceedings. Compensation has to be determined under the provisions of Act of 2013.

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2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the Act of 2013 under the Act of 1894 as if it has not been repealed.

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3. The word ‘or’ used in Section 24(2) between possession and compensation has to be read as ‘nor’ or as ‘and’. The deemed lapse of land acquisition proceedings under Section 24(2) of the Act of 2013 takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.

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4. The expression 'paid' in the main part of Section 24(2) of the Act of 2013 does not include a deposit of compensation in court. The consequence of non-deposit is provided in proviso to Section 24(2) in case it has not been deposited with respect to majority of land holdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the Act of 1894 shall be entitled to compensation in accordance with the provisions of the Act of 2013. In case the obligation under Section 31 of the Land Acquisition Act of 1894 has not been fulfilled, interest under Section 34 of

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the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of non-deposit with respect to the majority of holdings for five years or more, compensation under the Act of 2013 has to be paid to the "landowners" as on the date of notification for land acquisition under Section 4 of the Act of 1894.

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5. In case a person has been tendered the compensation as provided under Section 31(1) of the Act of 1894, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or nondeposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). Land owners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the Act of 2013.

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6. The proviso to Section 24(2) of the Act of 2013 is to be treated as part of Section 24(2) not part of Section 24(1)(b).

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7. The mode of taking possession under the Act of 1894 and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the Act of 1894, the land vests in State there is no divesting provided under Section 24(2) of the Act of 2013, as once possession has been taken there is no lapse under Section 24(2).

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8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the Act of 2013 came into force, in a proceeding for land acquisition pending with concerned authority as on 1.1.2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

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9. Section 24(2) of the Act of 2013 does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the Act of 2013, i.e., 1.1.2014. It does not revive stale and time-barred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.

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Let the matters be placed before appropriate Bench for consideration on merits.”

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In the light of the aforesaid judgment, all issues involved in the Writ appeal stands concluded and the question of reverting the land back to the respondent No.1 does not arise.

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Learned counsel for respondent No.1 has placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Prahlad Singh and Ors., vs. Union of India and Ors., reported in (2011) 5 SCC 386 and his contention is that on account of the aforesaid judgment, as physical possession was not taken, the land should be reverted back to the land owner.

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This Court has carefully gone through the judgment delivered by the Hon’ble Supreme Court in the case of Prahlad Singh and Ors., vs. Union of India and Ors.,(supra). However, in the light of the judgment of the Constitutional Bench (supra), the judgment cited by the learned counsel for respondent No.1, does not help respondent No.1 at all.

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Learned counsel for respondent No.1 has vehemently argued before this Court that on account of the order passed in Civil Suit respondent No.1 was placed in possession and there is a decree in his favour. It is pertinent to note that the provisions of the Land Acquisition Act, 1894 are applicable in case the land is acquired by BDA by invoking the provisions of BDA Act.

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Section 53 of the Land Acquisition Act, 1894 reads as

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under:

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“53. Code of Civil procedure to apply to proceedings before Court.-

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Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1980), shall apply to all proceedings before the Court under this Act.”

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Keeping in view the aforesaid provision provided under the Land Acquisition Act, the Civil Court was jurisdictionally incompetent to decide any issue in respect of the land in question as proceedings were initiated for acquisition of the land and there was an award passed in the matter. Therefore, even if it is presumed for a moment that on account of some order passed by the Civil Court respondent No.1 came in possession of the land, it does not help respondent No.1 in any manner. Otherwise also, as stated earlier, the controversy involved stands concluded on account of the judgment delivered by the Constitutional Bench, hence respondent No.1 was certainly not entitled to the relief prayed for. However, he was certainly at liberty to take the compensation which was awarded to him accordance with law. Hence, the order passed by the learned Single Judge is hereby set aside.

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Resultantly, the writ appeal is allowed. No orders as to costs.

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Sd/JUDGE Sd/JUDGE

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The Bangalore Development Authority v. Sri. R. Narayana Prasad

Case brief

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The Bangalore Development Authority v. Sri. R. Narayana Prasad

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