Allowed

Sri B Vijayakumar v. the State of Karnataka

Karnataka HC18 Aug 2023WP/9246/2021

Case brief

AI extract

What is this about?

Petitioner sought deletion of his land from acquisition proceedings. High Court held that creating a standalone layout on remaining small isolated pockets contrary to Supreme Court precedent, quashing notification regarding petitioner's property.

What did the court decide?

Final notification dated 09.09.2003 quashed and set aside insofar as it relates to 1 acre 8 guntas in Sy.No.48/3B1.

Sri B Vijayakumar Vs the State of Karnataka — Land Acquisition | Karnataka HC (2023)

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NC: 2023:KHC:29425 WP No. 9246 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R DEVDAS WRIT PETITION NO.9246 OF 2021 (LA-BDA)

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BETWEEN:

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SRI B VIJAYAKUMAR AGED ABOUT 71 YEARS S/O LATE C BASAVAIAH R/AT NO. 16, NYDILE 1ST MAIN KUVEMPUNAGARA DODDAKALLASANDRA, KANAKAPURA ROAD, BANGALORE 560 062

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…PETITIONER

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(BY SRI. D.R.RAVISHANKAR., SR. COUNSEL FOR SRI. K. VIJAYA KUMAR, ADVOCATE)

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AND:

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Digitally signed by JUANITA THEJESWINI Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT VIKASA SOUDHA BANGALORE 560001

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BANGALORE DEVELOPMENT AUTHORITY T CHOWDAIAH ROAD, KUMARA PARK WEST BANGALORE 560020 REPRESENTED BY ITS COMMISSIONER

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SPECIAL LAND ACQUISITION OFFICER BANGAORE DEVELOPMENT AUTHORITY KUMARA PARK WEST BANGALORE 560020

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…RESPONDENTS

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(BY SRI. LAGALI HANAMANTHRAY, AGA FOR R1 SRI. K. KRISHNA, ADVOCATE FOR R2 & R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-1, 2 AND 3 AUTHORITIES TO DELETE/DROP/DE-NOTIFY THE PETITIONERS SCHEDULE A AND C PORTION PROPERTIES FROM THE ACQUISITION PROCEEDINGS OF PRELIMINARY NOTIFICATION DTD 7.11.2002 VIDE ANNX-G ISSUED BY THE R-3, AUTHORITY AND FINAL NOTIFICATION DTD 09.09.2003 VIDE ANNX-H ISSUED BY THE R-1 AND ETC.,

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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R.DEVDAS J., (ORAL):

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The petitioner who is a senior citizen is before this Court seeking certain directions in the light of the decision

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of the Hon’ble Supreme Court in the case of BONDU RAMASWAMY /VS./ BANGALORE DEVELOPMENT

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AUTHORITY (2010) 7 SCC 129 .

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The undisputed facts are that a preliminary

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notification dated 07.11.2002 was issued by the Bangalore Development Authority (BDA) proposing to acquire several lands for formation of connecting road from Kanakapuara to Banashankari VI Stage and further extension of Banashankari VI Stage Layout and a final notification dated 09.09.2003 was issued by the State Government. The petitioner who is the notified kathedar and owner of the property in Sy.No.48/3B-1 measuring 1 acre and 8 guntas of land in Gubbalala Village, Uttarahalli Hobli, Bangalore South Taluk is before this Court seeking a direction to the respondent - BDA and the State Government to delete/drop/de-notify the lands of the petitioner from the acquisition proceedings.

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Learned Senior Counsel Sri D.R.Ravishankar, appearing for the petitioner submits that in the final notification issued by the State Government the name of the petitioner is found at Sl.No.321, however showing Sy.No.as 48/3A measuring 1 acre and 16 guntas against

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his name. At Sl. No.322 is the name of Sri M.Sheshappa and others in respect of Sy.No.48/3B1 measuring 1 acre and 8 guntas. Since an objection was sought to be raised at the hands of the learned counsel for the respondent - BDA that earlier writ petitions were filed by Sri M.Sheshappa and others in respect of Sy.No.48/3B1 and therefore the petitioner could not have filed one more writ petition in respect of the same property, the attention of this Court is drawn to Annexure-F which is a mutation register extract dated 12.11.2020. Learned Senior Counsel

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points out from the mutation register extract, that by mutation Order No.14/2005-06 dated 12.01.2006, the land belonging to the petitioner measuring 1 acre and 8 guntas is subsequently renumbered as 48/3B1 while mutation entry in favour of Sri M.Sheshappa and others has been removed in respect of Sy.No.48/3B1 and renumbered as 48/3A.

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Learned Senior Counsel submits that earlier the petitioner herein had filed W.P.No.16829/2010 with the

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same prayer seeking deletion or dropping the acquisition proceedings. However, this Court by order dated 06.01.2012 noticed that neighbouring property owners like Sri M.Sheshappa and others had also approached this court in W.P.No.8612/2008 and some others in W.P.No.44949/2003 and there were certain directions issued in those writ petitions to the Commissioner and the Special Land Acquistion Officer to consider the contentions raised by the writ petitioners that the neighbouring properties were either dropped from acquisition proceedings or betterment charges were levied in terms of Section 20 of the BDA Act and were left out of the acquisition proceedings and therefore whether the land in question were also required to be considered for the same reasons. A direction was therefore issued to the Commissioner, BDA to consider the representations given by the petitioner and pass orders within a period of four months from the date of receipt of copy of the order.

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Nevertheless, during the course of these

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proceedings when this Court found that the direction issued earlier to the Commissioner were not considered and no orders were passed, the Commissioner was once again directed to comply with the directions issued by this Court earlier in W.P.No.16829/2010. Consequently, the Commissioner, BDA passed an order on 18.04.2023 which

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was placed on record along with a memo dated 19.04.2023 at the hands of the learned counsel for the respondent - BDA. Learned Senior Counsel submits, while

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taking this Court through the said order, that the Commissioner has not considered the case of the petitioner in the light of the decision of the Hon’ble Supreme Court in the case of BONDU RAMASWAMY. On the other hand, it is submitted that it is clear from the order passed by the Commissioner that he admits that all the neighbouring properties have been left out of the acquisition proceedings and what remains was only the property belonging to the petitioner and Sri M.Sheshappa. The Commissioner has opined in the said order that

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although the neighbouring properties have not been acquired, nevertheless the two pieces of property which would totally measure about 2 acres and 24 guntas can be utilised for formation of a layout. This, it is submitted, is contrary to the law laid down by the Hon’ble Supreme Court in the Case of BONDU RAMASWAMY . Attention of this Court is drawn to the conclusive portion of the order passed in BONDU RAMASWAMY more particularly clause (ii) of the paragraph No.160, which reads as follows:

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“( ii ) In regard to villages of Venkateshapura, Nagavara, Hennur and Challakere where there are several very small pockets of acquired lands surrounded by lands which were not acquired or which were deleted from the proposed acquisition, BDA may consider whether such small pockets should also be deleted if they are not suitable for forming self-contained layouts. The acquisition thereof cannot be justified on the ground that these small islands of acquired land, could be used as a stand-alone park or playground in regard to a layout formed in a different unconnected lands in other villages.

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Similar isolated pockets in other villages should also be dealt with in a similar manner.”

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Learned Senior Counsel submits that it is clear

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from the said directions issued by the Apex Court that acquisition thereof cannot be justified on the ground that small islands of acquired land could be used as a standalone park or playground in regard to a layout formed in a different unconnected lands. In that view of the matter, the learned Senior Counsel has taken this Court through the map submitted at the hands of the respondent - BDA and submits that it is clear from the map supplied by the BDA and the photographs furnished at the hands of the petitioner that all the lands surrounding the land in question including that of Sri M.Sheshappa have been left out of the acquisition proceedings. What remains is only 2 acres and 24 guntas or even lessor since a portion of the property belonging to the petitioner was utilised for the purpose of formation of road. Therefore, practically only about 1 acre 30 guntas of land may remain which belongs

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to the petitioner and Sri M.Sheshappa and the

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Commissioner has opined that the same can be formed into a separate layout. This opinion of the Commissioner would be contrary to the law laid down by the Hon’ble Supreme Court in the case of BONDU RAMASWAMY . Learned Senior Counsel would further submit that in respect of the neighbouring properties the BDA thought it fit to levy betterment charges and not acquire the land for formation of layout. Atleast three or four such property owners gave up their claim in respect of the land utilised for formation of road and accordingly their lands are left out of acquisition proceedings while levying and collecting betterment charges. Learned Senior Counsel submits that same benefit should have given to the petitioners and there is no reason why only a small portion of property measuring approximately 1 acre and 30 guntas are sought to be utilised for formation of a layout. Learned Senior Counsel submits that if directions are issued by this Court, the petitioner is more than willing to give up his claim regarding the property utilised for formation of road and

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the petitioner may be permitted to utilise the rest of the lands for beneficial use, as was done in the case of other neighbouring lands.

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Per contra, learned counsel Sri K.Krishna

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appearing for the respondent - BDA submits that on a plain reading of the averments made in the writ petition it does not disclose as to how the change in the survey numbers of the property belonging to the petitioner and Sri M.Sheshappa has come about. Further it is submitted

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that the case of Sri M.Sheshappa and others were considered on the same lines and the Commissioner had also earlier opined that the lands could not be dropped

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from the acquisition proceedings. Sufficient reasons are found in the order passed by the Commissioner. It is therefore sought to be submitted that writ petition cannot be maintained at the hands of the petitioner, since Sri M.Sheshappa and others had already approached this Court in respect of same property i.e., Sy.No.48/3B1. Insofar as the opinion of the Commissioner in the recent

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order dated 18.04.2023, the learned counsel would submit that details of all the neighbouring properties and the manner in which they were dealt with has been elaborately given in the order. The Commissioner has given acceptable reasons as to why the land in question cannot be dropped from the acquisition proceedings. Moreover, it is submitted that award has been passed in respect of the land in question and therefore at this point of time the land in question cannot be dropped from the acquisition proceedings.

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Having heard the learned Senior Counsel for the petitioner, learned counsel for the respondent - BDA and having perused the petition papers, this Court finds that having regard to the law laid down by the Hon’ble Supreme Court in the case of BONDU RAMASWAMY, the opinion of the Commissioner in his order dated 18.04.2023 cannot be accepted. Having regard to the map submitted by the BDA and the photographs furnished at the hands of the petitioner, it is clear that all the neighbouring

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properties have been left out of the acquisition

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proceedings and what remains is two small pieces of property belonging to the petitioner and Sri M.Sheshappa. The learned Senior Counsel appearing for the petitioner has reasonably clarified the position regarding the change in the survey number and therefore there cannot be any doubt in the mind of this Court regarding the ownership of

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the property in question standing in the name of the petitioner. The facts narrated in the order dated 18.04.2023 by the Commissioner also supports the submission of the learned Senior Counsel that the two properties are distinct and different and there cannot be any confusion about the land belonging to the petitioner and Sri M.Sheshappa and others. However, the opinion of the Commissioner that the two pieces of land which on paper measures about 2 acres and 24 guntas could be formed as a stand-alone layout, would be contrary to the law laid down by the Hon’ble Supreme Court in the case of

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BONDU RAMASWAMY . A layout which is required to be formed by the BDA should be a self contained layout. The

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layout should contain residential sites, commercial area, roads, civic amenities sites, parks, playground etc. The proposition of forming island layout in small pieces of property has been deprecated by the Hon’ble Apex Court. In that view of the matter, this Court would not hesitate to hold that the opinion of the Commissioner in his order dated 18.04.2023 would be contrary to the judgment of

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the Hon’ble Supreme Court in the case of BONDU RAMASWAMY. When it is clear that all the neighbouring properties surrounding the lands in question have not been utilised for formation of a layout, it would be impermissible for the BDA to form a separate layout in the land in question. The directions given by the Hon’ble Supreme Court in the case of BONDU RAMASWAMY more particularly clause(ii) of paragraph No.160 would apply on all fours to the facts and circumstances of this case.

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Consequently, the writ petition is allowed. The impugned preliminary notification dated 07.11.2002 and

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final notification dated 09.09.2003 insofar as the 1 acre 8 guntas in Sy.No.48/3B1 situated at Gubbalala Village, Uttarahalli Hobli, Bangalore South Taluk, is hereby quashed and set aside. However, it is made clear that the road formed on the land in question will continue without any obstruction at the hands of the petitioner. In fact, the learned Senior Counsel has pointed out from the schedule given in the memorandum of writ petition that schedule ‘B’ portion is a portion utilised for formation of the road at the hands of the respondent - BDA and the petitioner has given up his claim in respect of the lands utilised for formation of the road.

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Ordered accordingly.

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Sd/JUDGE

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KLY

Sri B Vijayakumar v. the State of Karnataka

Case brief

What is this about?

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Sri B Vijayakumar v. the State of Karnataka

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