Bangalore Soft Drinks Pvt. Ltd. Vs the Bangalore Development Authority

BANGALORE SOFT DRINKS PVT. LTD., A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT NO.114, OPP. VIDYANIKETAN SCHOOL ULLAL RTO ROAD, MALLATHAHALLI, BENGALURU-560 056 REPRESENTED BY ITS MANAGING DIRECTOR MR. PANKAJ KUMAR C. LAKHANI [email protected]

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PRATIMA P. LAKHANI WIFE OF MR. PANKAJ LAKHANI, AGED ABOUT 72 YEARS, AT NO.143, 4^TH CROSS, RAJMAHAL VILAS EXTENSION,

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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BENGALURU-560 056.

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(BY SRI KARAN JOSEPH, ADVOCATE)

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…PETITIONERS

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AND:

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THE BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560 026. REPRESENTED BY ITS COMMISSIONER.

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THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT, DR. AMBEDKAR VEEDHI ROAD,

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NC: 2025:KHC:52498 WP No. 11022 of 2025

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HC-KAR

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VIDHANA SOUDHA, BENGALURU-560 001. REPRESENTED BY ITS PRINCIPAL SECRETARY.

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THE SPECIAL LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560 026.

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…RESPONDENTS

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(BY SRI VACHAN B., ADVOCATE FOR R-1 & R-3; SRI HARISHA A.S., AGA FOR R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE SCHEME PERTAINING TO VENKATESHWARA LAYOUT ENVISAGED BY BDA HAS LAPSED AND CONSEQUENTLY QUASH THE FINAL NOTIFICATION BEARING NO.HUD/377/MNX/90 DATED 30.11.1990 VIDE ANNEXUREA ISSUED BY RESPONDENT NO.1 PURSUANT TO THE JUDGEMENT OF THIS HON’BLE COURT IN W.P.NO.43674 OF 2013 PRODUCED AT ANNEXURE-E.

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THIS PETITION COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL ORDER

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This Writ Petition is filed seeking a declaration that

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the final notification dated 30.11.1990 issued for the acquisition of land bearing Sy. No. 19/1A measuring 2 acres 06 guntas situated at Nayandahalli Village, Kengeri

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HC-KAR

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Hobli, Bangalore South, is non-est on the ground that the entire scheme underlining the said notification has lapsed under Section 27 of the Bangalore Development Authority Act. 1976 (‘BDA Act’ for short) and also on the ground that the alleged possession claimed to have been taken by the respondent under mahazar dated 06.10.1993 is a cyclostyle, invalid paper possession contrary to the binding principles laid down by the Apex Court in A.P Electrical Equipment Corporation v. Tahsildar and Others¹ (A.P Electrical Equipment Corporation) .

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BRIEF FACTS

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The petitioner No. 1 is a private limited company

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and petitioner No.2 is a shareholder of the petitioner No.1. They claim to be the absolute owner of the schedule property, having purchased the same under registered sale deeds of the year 1967 and 1970. It is the case of the petitioners that surrounding lands owned by the

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1 2025 SCC Online SC 447

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HC-KAR

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petitioners were dropped from acquisition after objections were considered by the BDA. A preliminary notification was issued on 29.12.1988, followed by the final notification dated 30.11.1990 for the formation of Venkateshwara layout. An award is stated to have been passed in the year 1993 and BDA asserts that possession was taken under a mahazar dated 06.10.1993. The petitioners claim to be in peaceful, physical and uninterrupted possession of the schedule property and in support of its possession, conversion orders, RTC, tax receipts, e-katha, fencing, survey sketch and photographs are produced. The schedule property was also converted for residential use in 1999 i.e., long after the alleged taking of possession, evidencing that BDA itself recognized the ownership and possession of the petitioners. Multiple decisions of this Court have declared that the Venkateshwara layout scheme have lapsed and those findings have been attained finality. The petitioners approached the BDA for NOC in 2025, whereupon the BDA

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HC-KAR

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issued an endorsement asserting ownership based on 1990 notification leading to the filing of the present petition.

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Heard learned counsel for the petitioners, learned AGA for respondent No.2 and learned counsel appearing for respondent Nos. 1 and 3.

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Learned counsel for the petitioners would contend that the scheme has lapsed under Section 27 of the BDA Act as the scheme was never implemented within the statutory five year period. The BDA itself has admitted the lapse in several writ petitions which have been allowed. It is specifically contended that the mahazar is cyclostyle, the alleged mahazar dated 06.10.1993 lacks witness signatures, prepared without application of mind and neither Section 16(2) notification was issued. Reliance is placed on the decision in A.P Electrical Equipment

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Corporation, (supra), where the Apex Court has held that paper possession or cyclostyle panchanama do not vest land in State and have no sanctity in law. It is further

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HC-KAR

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submitted that conversion order of 1999 demonstrate BDA's acknowledgment that the land remained with the petitioners, which would be impossible if possession had been taken in the year 1993. The following judgments have been placed reliance to contend that the scheme pertaining to Venkateshwara layout has been declared to have lapsed :

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(i) The Commissioner, BDA, and

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Others vs Mrs. Anandamma and Another² (Anandamma) . (ii) Smt. Muniyamma vs State of Karnataka and Others³ (Muniyamma) .

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(iii) L. Krishnappa and Others vs The

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Commissioner, BDA and Others⁴ (L.Krishnappa) .

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2 WA 6838/2017, D.D.4.2.2020

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3 W.P 43674/2013, DD 27.03.2014

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4 WP 7218/2014, DD 10.04.2014

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HC-KAR

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(Papamma) .

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Reliance is also placed on the decisions where

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the schemes have been declared as lapsed and a final notification have been quashed.

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(i) BDA and Another vs State of Karnataka and Another⁶ (BDA) .

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(ii) BDA and Another vs Gautam Kamat Hotels Private Limited and

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Others⁷ (Gautam Kamat Hotels Private Limited).

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(iii) B.S Jayachandra vs State of Karnataka and Others⁸ (B.S.Jayachandra).

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5 WPs 3349-3359/2016 DD 23.04.2016

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6 WA 1013/2016, DD 04.02.2020

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7 WA No. 311/2013 and connected matters, DD 21.01.2020

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8 WP 11724/2024, DD 10.06.2025

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HC-KAR

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In the context of possession cannot be taken

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under a cyclostyle manner which is unreliable and has been drawn in an illegal manner, land does not vest in the acquiring authority upon failure to take possession of lands, the following decisions are placed reliance :

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(i) Dr. A. Parthasarathy and Others vs State of Karnataka and Others⁹ (A.Parthasarathy) . (ii) Anthony Reddy vs State of Karnataka and Others¹⁰ (Anthony Reddy) . (iii) Prahlad Singh and Others vs Union of India and Others¹¹ (Prahlad Singh) .

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9 ILR 2017 Karnataka 3489

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10 ILR 2020 KAR 1348

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11 (2011) 5 SCC 386

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HC-KAR

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(iv) Savithramma and Others vs State

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of Karnataka and Others¹² (Savithramma) .

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(v) H. Nagarajaiah and Others vs State of Karnataka and Others¹³ (H.Nagarajaiah) .

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Per contra, the learned counsel appearing for the

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respondent Nos. 1 and 3 submits that the petition suffers from delay and latches being filed after more than 30 years. An award was passed in the year 1993 and a possession mahazar was drawn on 06.10.1993 showing that the acquisition is complete. It is contended that the petitioners filed Section 18 reference which amounts to acceptance of acquisition. Further that the earlier W.P 4994 of 1994 challenging the same notification was dismissed and thus the present writ petition is barred by constructive res judicata . It is contended that even if the

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12 WP 10824 of 2009, DD 05.10.2020

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13 WP 16865/2022, DD 27.01.2025

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HC-KAR

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scheme has lapsed, the acquisition will not lapse where

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award is passed and possession is taken.

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Having heard the learned counsel for the parties

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the points that arises for consideration are,

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(i) whether the petitioners have established that the scheme for Venkateshwara layout has lapsed under Section 27 of the BDA Act and whether the mahazar dated 06.10.1993 constitutes the valid proof of taking possession?. (ii) Whether the petition is barred by delay, latches or constructive res judicata?

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(iii) And whether the petitioners are entitled to a declaration that the final notification dated 30.11.1990 is not est?

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HC-KAR

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All the points for consideration are taken up

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together in order to avoid repetition of facts.

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The preliminary notification dated 29.12.1988

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was issued for acquisition of 209 acres 0.4½ guntas of land in Nayandahalli Halli Village. Under the final notification dated 30.11.1990 the extent of land proposed to be acquired was reduced to 137 acres 8½ guntas, within which the petitioners land measuring 2 acres 6 guntas in Survey No. 19/1A was included. This Court in a long line of decisions concerning the very same Venkateshwara layout has categorically held that the entire scheme stood unimplemented and had, therefore lapsed under Section 27 of the BDA Act. These include Mrs. Anandamma, Muniyamma, (supra) Venkatappa and Another vs State of Karnataka and Others¹⁴ L. Krishnappa, Papamma and L. Venkatappa (supra). The decision in Venkatappa has been appealed by the BDA in Writ Appeal 1567 of 2025, which is pending only

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14 WP 16529/2023, DD 16.04.2024

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HC-KAR

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for curing defects and significantly no stay has been granted. Thus the judicial declaration of lapse of the Venkateshwara layout remains undisturbed and fully operative.

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The respondents’ contention that the present acquisition has not lapsed is untenable. When multiple landowners whose lands were identically notified have been expressly granted a declaration of lapse, the petitioners cannot be singled out and denied identical treatment. Article 14 mandates equality of treatment among equals, especially when the factual matter is identical and the scheme is same. In the similar circumstances where schemes have been declared as lapsed, final notification has been quashed in the case of BDA, i.e., Writ Appeal 1013/2016, Gautam Kamath Hotels Private Limited and B.S. Jayachandra wherein this Court has held that when the BDA failed to execute the scheme substantially within 5 years from the publication of the declaration under Section 19(1) of the

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HC-KAR

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BDA Act, where authority fails to execute the scheme substantially the scheme shall lapse and the provisions of Section 27 of the BDA Act would be applicable, the provisions of Section 36 would become inoperative.

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The respondents rely on Beerbal Singh vs State of Uttar Pradesh and Others¹⁵ (Beerbal Singh) , to contend that the second writ petition challenging the same acquisition is impermissible. The reliance is misplaced. The earlier writ petition filed by the petitioners in WP 4994 of 1994 was instituted before the scheme had lapsed. On 30.11.1995, by efflux of time and nonimplementation the final notification stood lapsed. Therefore the cause of action for seeking a declaration of lapse under Section 27 of the BDA Act did not exist in 1994. The present writ petition challenges not the acquisition per se, but the subsequent statutory lapse of the scheme. This ground could not have been urged earlier

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15 (2018) 13 SCC 675

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HC-KAR

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and thus it is not barred by res judicata or constructive res judicata.

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The plea of delay and latches raised by the respondents is equally unsustainable. The scheme lapsed on 30.11.1995. Despite this, the respondent No.3 in its intimation dated 18.03.2025 now seek to claim that the property belong to the BDA. The Division Benches of this Court in Anthony Reddy, Savithramma (supra) have held that every day's delay in implementing the scheme strengthens the land owner's case, and that the delay cannot defeat a challenge seeking a declaration of lapse under Section 27. In L Krishnappa (supra) which pertained to the very same layout i. e. Venkateshwara layout, this Court held that delay does not bar a declaration of lapse. Furthermore the lapse of the scheme confers upon the petitioners a continuous cause of action. The respondents cannot invoke delay when they have allowed the scheme to remain unimplemented for decades.

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HC-KAR

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The respondents rely on an entry in the order

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sheet as could be seen from the records which is placed before this Court, asserting that the possession of Sy. No. 19/1A was taken on 06.10.1993 and handed over to the Engineering Section of BDA on the same day. However, in the earlier writ proceedings, the petitioners specifically asserted that the possession was never taken. The respondents never pleaded in those proceedings that the possession had been taken under any mahazar dated 06.10.1993. No contemporaneous mahazar was ever produced before the Court then. The silence itself is indicative that no possession was lawfully taken. Even assuming an internal note exists, the respondents have failed to produce any validly drawn mahazar satisfying legal requirements. The document now produced is a cyclostyle format, lacking :

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(i) Signature of the land owner

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(ii) The identification and signature of panchas

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HC-KAR

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(iii) Independent verification of physical possession

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The respondents further admit that the land has never been utilized for implementation of the scheme. This contradicts their own claim of possession. The purported mahazar merely contains certain incomplete names without any signatures, addresses or parentage of witnesses. Mahazars which do not contain witness signatures and their verification details are unlawful as held by the Apex Court in A.P Electrical Equipment Corporation, Prahlad Singh and the Division Benches of this Court in Dr. A. Parthasarathy, Anthony Reddy, BDA, Gautam Kamat Hotels Private Limited, Nagarajaiah (supra) Sreeramappa and Others vs State of Karnataka and Others¹⁶ wherein the Division Benches of this Court has held that possession taken on basis of a cyclostyle mahazar is unlawful in nature. The recent decision of the Apex Court in the case of A.P Electrical Equipment Corporation has laid down binding

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16 2016 SCC Online KAR 8555

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principle regarding alleged possession based on ‘paper panchnamas’. The Apex Court observed that :

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(i). when authorities claim possession, by

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‘hook or crook’ relying on bogus or fabricated panchanamas, such documents cannot be accepted.

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(ii). To attach sanctity to a panchanama,

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the signature of the land owner must be obtained.

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(iii). Affidavits of panchas are necessary to lend credibility.

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(iv). The Court observed that in 9 out of 10 cases, the State's claim of possession is found to be a case of paper possession.

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(v). The Writ Court cannot avoid scrutiny

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merely by calling it a disputed question of fact. If the documents are inherently unreliable and falsified by record, the Court must reject them.

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HC-KAR

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Applying this principle, the mahazar relied upon by the respondents is nothing more than a paper, cyclostyle, template document, incapable of vesting possession in law. The State must prove actual physical possession by lawful procedure and here no such proof exists.

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The schedule property was converted for a residential use in 1999 by the competent authority and the order was issued in favour of the petitioners. The schedule property was converted in the petitioners favour on 20.09.1999. The petitioners' continuous possession is established by the RTCs, tax paid receipts, e-katha, survey sketch and the recognition of possession. Each of these documents reinforces the actual physical possession since purchase defeating the respondents claim of lawful handover in 1993.

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For the foregoing reasons, this Court is satisfied that the scheme underlining the acquisition of the schedule property stood lapsed under Section 27 of the

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HC-KAR

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BDA Act. The alleged possession dated 06.10.1993 is unsupported by any lawful or credible evidence and the mahazar relied upon is cyclostyle, invalid, paper possession. The respondents reliance on Beerbal Singh (supra) is misplaced to the present challenge to the statutory lapse of the scheme. The plea of delay and latches is inapplicable to the challenge arising from statutory lapse and continuous possession. The petitioners have established uninterrupted possession and clear entitlement of declaration that the acquisition is non est. The points framed for consideration are answered accordingly and this Court pass the following:

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ORDER

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(i). The Writ Petition is allowed.

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(ii) It is hereby declared that the scheme

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pertaining to Venkateshwara Layout insofar as it relates to the schedule property stand lapsed

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HC-KAR

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under Section 27 of the BDA Act on account of

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the complete non-implementation.

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(iii) Consequently, the final notification dated 30.11.1990 in so far as it pertains to the petitioners’ land bearing Sy. No. 19/1A measuring 2 acres 6 guntas situated at Nayandahalli Village, Kengeri Hobli, Bangalore South Taluk, is quashed.

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Pending applications, if any, stands

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disposed of.

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Sd/-

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JUSTICE K.S. HEMALEKHA

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CKL

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List No.: 1 Sl No.: 96

Bangalore Soft Drinks Pvt. Ltd. v. the Bangalore Development Authority

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Bangalore Soft Drinks Pvt. Ltd. v. the Bangalore Development Authority

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