M/S Yellamma Dasappa Medical College and Research Foundation Vs the State of Karnataka

INDRANI DASAPPA, TRUSTEE, W/O SHRI MADHAV ERRAGUNTLA AND D/O LATE SHRI D. DASAPPA, AGED ABOUT 56 YEARS, RESIDING AT NO.3207, VONTRAPP LANE, COLLEGE STATION, TEXAS 77845, USA, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SHRI. HARSHA KANEKAL

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S/O LATE K.G. SRIMARI NARAYANASWAMY AGED ABOUT 63 YEARS, R/A NO.47, SAROJ, 7^TH CROSS, NEAR WILSON GARDEN POLICE STATION, BENGALURU-560 027.

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MEENAKSHI KANEKAL, TRUSTEE, W/O SHRI HARSHA KANEKAL AND D/O LATE SHRI D. DASAPPA, AGED ABOUT 61 YEARS, R/AT NO.47, SAROJ, 7^TH CROSS, NEAR WILSON GARDEN POLICE STATION, BENGALURU-560 027.

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R. HARISHCHANDRA, TRUSTEE, S/O LATE SHRI. D. RAMACHANDRAPPA, AGED ABOUT 43 YEARS, R/AT NO.493/1/1, 10^TH CROSS, RAJMAHAL VILAS EXTENSION, SADASHIVNAGAR, BENGALURU-560 080.

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DR. R. KAVITHA VINAYAK, TRUSTEE, W/O SHRI VINAYAK AND D/O LATE SHRI D. RAMACHANDRAPPA, AGED ABOUT 42 YEARS, R/AT NO.214/2P, 1516, 7^TH CROSS, DEVAMATHA CENTRAL SCHOOL, ASHIRWAD COLONY, BENGALURU-560 043.

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J. GNANESHWAR, TRUSTEE, S/O SHRI D. JAIRAJ (AKA D. JAYARAJ), AGED ABOUT 32 YEARS, R/AT NO.65, FLAT NO.200, IVY BLOSSOM APARTMENT, 13^TH CROSS, BEHIND EKYA SCHOOL, J.P. NAGAR, 3^RD PHASE, BENGALURU-560 078. …PETITIONERS

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(BY SRI ADITYA SONDHI, SENIOR COUNSEL FOR SMT. PREETI K., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA URBAN DEVELOPMENT DEPARTMENT REPRESENTED BY ITS SECRETARY BANGALORE-560 001.

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THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY, CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE-560 020.

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THE SPECIAL LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY, CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE-560 020.

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A.B. NANJUNDAIAH TRUST DOOR NO.18, PILLAPPA LANE, J.N. ROAD, BANGALORE-560 002 RERPESENTED BY ITS TRUSTEE A.N. JAISHANKAR.

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…RESPONDENTS

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(BY SRI HARISHA A.S., AGA FOR R-1; SRI G.A. GOPI, ADVOCATE FOR R-2 & R-3; SRI VIJAY KRISHNA BHAT, ADVOCATE FOR R-4)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT THE ACQUISITION PROCEEDINGS INITIATED FOR THE SCHEME BANASHANKARI 5TH STAGE AS AGAINST THE PETITIONERS LAND IN SY. NO.62 OF DODDAKALLASANDRA VILLAGE HAS LAPSED AND CONSEQUENTLY QUASH THAT THE NOTIFICATION BEARING NO.BDA/SLAO/A1/324/1988-89 DATED 13.04.1989 VIDE ANNEXUREB AND NOTIFICATION NO.HUD-127-MNX-94 DATED 09.05.1994 VIDE ANNEXURE-C AND ETC.

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THIS PETITION COMING ON FOR DICTATING ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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

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HC-KAR

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ORAL ORDER

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The petitioners are calling in question the legality of the acquisition proceedings initiated in respect of the land situated in Survey No.62 of Doddakallasandra Village for formation of Banshankari V stage layout and the subsequent sale deed executed by the Bangalore Development Authority (BDA) in favour of respondent No.4. The petitioners further seek a declaration that the acquisition has lapsed under Section 27 of the Bangalore Development Authority Act, 1976 (‘BDA Act’ for short) on the ground that the scheme was not implemented and possession of the lands were never taken in accordance with Section 16 of the Land Acquisition Act, 1894 (‘LA Act’ for short).

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Brief facts :

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The undisputed facts are that the predecessor

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in title of the petitioners purchased land measuring 1 acre 24 guntas with 6 guntas karab in Survey No.62 of Doddakallasandra Village in the year 1981 and thereafter,

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formed a layout and sold individual sites. The petitioners purchased Site Nos.1, 2, 19, 20, 21 and 22 under registered sale deeds and claims to be in continuous possession.

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A preliminary notification dated 29.12.1988 and final notification dated 09.05.1994 were issued by the BDA for formation of Banashankari V stage layout. The scheme was examined by this Court in W.P. No.8944/2016, which came to be allowed, declaring lapse of the scheme for non-implementation. While disposing of the said writ petition, this Court reserved liberty to the present petitioners to initiate appropriate proceedings.

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Sri Aditya Sondhi, learned senior counsel for

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the petitioners contends that there is no vesting of land under Section 16 of the LA Act, as no valid Section 16 (2) notification covers the scheduled land. He contends that the BDA itself does not claim lawful possession, and that in the absence of vesting, the BDA had no authority to

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execute a sale deed in favour of respondent No.4. The allotment made in favour of respondent No.4 was only an alternate site and does not amount to an implementation of the scheme. The earlier proceedings initiated by respondent No.4 in W.P. No.6951/2006 and W.A. No.1549/2006 were dismissed, showing lack of possession. Further draws the attention of this Court to the settled position of law that, in the absence of vesting, the acquisition lapses and relies upon the decisions of The Commissioner, BDA, and Others vs. Mrs. Anandamma and Another¹ ( Anandamma ) and the Apex Court’s decision in the case of Offshore Holdings Private Limited vs. Bangalore Development Authority and Others² ( Offshore Holdings Private Limited)

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Per contra , learned counsel appearing for respondent Nos.2 and 3-BDA contends that in W.P. No.8944/2016, this Court protected the conveyance in favour of respondent No.4 and the question of lapse does

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1 WA 6838/2017, D.D.4.2.2020

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2 (2011) 3 SCC 139

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not arise in respect of the land already conveyed. The petitioners are subsequent purchasers and must seek remedy before the Civil Court and the findings in W.P. No.8944/2016 operates as a bar.

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Learned counsel appearing for respondent No.4

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submits that the sale deeds in favour of the petitioners are subsequent to the acquisition notification and the survey number is not clearly mentioned in the sale deeds, that the petitioners were aware of the sale deed executed in the year 2003 but failed to challenge the same in time. He relies upon the decision in the case of Shiva Kumar and another Vs. Union of India and others³ (Shiva Kumar) to contend that purchasers of land, after issuance of an acquisition notification cannot seek a declaration that the acquisition has lapsed, as such transactions are statutorily prohibited.

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Having heard the learned counsel for the

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parties, the point that arises for consideration is :

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3 (2019) 10 SCC 229

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“Whether the acquisition proceedings in respect of the schedule land have lapsed under Section 27 of the BDA Act, 1976 on account of non-implementation of the scheme and absence of vesting under Section 16 of the LA Act, 1894 and if so, whether the sale deed dated 27.06.2003 executed by BDA in favour of respondent No.4 cannot be sustained in law?”

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The vesting of land under Section 16 of the LA Act, 1894 is a sine qua non for the acquiring authority to deal with or convey the land. The material placed on record does not disclose the issuance of a valid notification under Section 16 (2) in respect of the scheduled land. The mahazar relied upon by the respondents does not constitute the lawful proof of possession and the sale deed in favour of respondent No.4 dated 27.06.2003. Admittedly, the sale deed dated 27.06.2003 precedes the notification issued under Section 16(2) dated 18.08.2009. Therefore, the BDA could not have conveyed the land which had not vested with it at the relevant point of time.

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This Court finds that the issue relating to non-

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implementation of Banashankari V stage scheme is no

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longer a res integra . In the case of the Bengaluru Development Authority and another Vs. Sri. Srinivasa Murthy and others⁴ (Srinivasa Murthy) , the Division Bench of this Court, while examining the very scheme, has recorded a clear factual finding that respondent No.2-BDA itself admitted that 544.03 acres were under litigation. Only 116.27 acres were stated to have been formed into a layout and 263.21 acres were denotified from acquisition. The Division Bench held that such fragmented acquisition does not amount to substantial implementation of the scheme as required under Section 27 of the BDA Act. These findings bind and directly apply to the present case.

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In Anandamma’s case this Court has unequivocally held that even a subsequent purchaser after issuance of acquisition notification is not denuded of right to seek declaration that the scheme is lapsed under Section 27 of the BDA Act and has expressly ruled that:

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4 W.A. No.435/2017 c/w 595/2016 D.D. 03.01.2020

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i. The right to seek declaration of lapse flows from statutory non-implementation of the scheme;

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ii. Such right does not depend upon the date of purchase, but upon the conduct of the acquiring authority.

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Much reliance is placed by the respondent on paragraph No.26 of Shiva Kumar's case which reads thus:

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“26. In Manav Dharam Trust² , even the provisions of the Act of 2013 have not been taken into consideration, which prohibits such transactions in particular provisions of Section 11, including the proviso to Section 24(2). Apart from that, it was not legally permissible to a Division Bench to ignore the decisions of the larger Bench comprising of three Judges and of coordinate Bench. They were not per incuriam and were relevant for deciding the issue of taking possession under the 1894 Act, at the instance of purchaser. In case it wanted to depart from the view taken earlier, it ought to have referred the matter to a

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larger Bench. It has been ignored that when a purchase is void, then no declaration can be sought on the ground that the land acquisition under the 2013 Act has lapsed due to illegality/irregularity of proceedings of taking possession under the 1894 Act. Nodeclaration can be sought by a purchaser under Section 24 that acquisition has lapsed, effect of which would be to get back the land. They cannot seek declaration that acquisition made under the 1894 Act has lapsed by the challenge to the proceedings of taking possession under the 1894 Act. Such right was not available after the purchase in 2000 and no such right has been provided to the purchasers under the 2013 Act also. Granting a right to question acquisition would be against the public policy and the law which prohibits such transactions; it cannot be given effect to under the guise of subsequent legislation containing similar provisions. Subsequent legislation does not confer any new right to a person based on such void transaction; instead, it includes a provision prohibiting such transactions without

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permission of the Collector as provided in Section 11(4).

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On cursive reading of the said paragraph, this

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Court finds that the Apex Court held that:

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i. Where the purchase itself is void and

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ii. Where purchaser seeks a declaration of lapse under Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (‘Act, 2013’ for short), based on alleged illegality or irregularity in taking possession under the LA Act, 1894.

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iii. In such cases, no declaration can be granted, as it would result in the restoration of land through a void transaction, which is against the public policy.

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However, the present case stands on a

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materially different footing because;

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i. The petitioners’ purchase is not declared void by any Court.

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ii. The relief sought is not under Section 24 of the Act, 2013 but under Section 27 of the BDA Act.

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iii. The foundation of claim is statutory lapse due to non-implementation of the scheme and absence of vesting, not irregularity of vesting.

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iv. No restoration of land pursuant to the prohibited transaction is being sought.

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Therefore, the decision in Shiva Kumar’s case is not applicable to the present facts.

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The Apex Court in the case of Offshore

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Holdings Private Limited has held at paragraph No.38 as under:

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“38. On a conjunctive reading of the provisions of Sections 27 and 36 of the State Act, it is clear that where a scheme lapses, the acquisition may not. This, of course, will depend upon the facts and circumstances of a given case. Where, upon completion of the acquisition proceedings, the

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land has vested in the State Government in terms of Section 16 of the Land Acquisition Act, the acquisition would not lapse or terminate as a result of lapsing of the scheme under Section 27 of the BDA Act. An argument to the contrary cannot be accepted for the reason that on vesting, the land stands transferred and vested in the State/Authority free from all encumbrances and such status of the property is incapable of being altered by fiction of law either by the State Act or by the Central Act. Both these Acts do not contain any provision in terms of which property, once and absolutely, vested in the State can be reverted to the owner on any condition. There is no reversal of the title and possession of the State. However, this may not be true in cases where acquisition proceedings are still pending and land has not been vested in the Government in terms of Section 16 of the Land Acquisition Act.”

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The Apex Court has held that ‘implementation

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under Section 27 of the BDA Act means substantial implementation of the scheme as a whole, not sporadic, partial or isolated acts.’

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The material on record including the findings in Srinivasa Murthy’s case, clearly establishes that large extents of lands were under litigation, significant portions were de-notified and only fragmented development had taken place. However, there is no substantial implementation of the scheme.

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In view of the decision in Anandamma’s case and having regard to the admitted non-implementation of the scheme, this Court holds that the acquisition proceedings in respect of the schedule land stand lapsed and the point framed for consideration is answered 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 thereby declared that the acquisition proceedings initiated in respect of the schedule land under preliminary notification dated 29.12.1988 and the final notification dated 09.05.1994 for formation of Banashankari V

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stage layout have lapsed in terms of Section 27 of the BDA Act, 1976 on account of nonimplementation of the scheme and absence of vesting under Section 16 of the LA Act, 1894.

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iii. It is further declared that the observation made in W.P. No.8944/2016 protecting the conveyance in favour of respondent No.4 was not on merits but on account of a concession by the petitioners therein and shall not operate as a bar to the present petition.

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iv. It is made clear that this order shall not preclude respondent No.4 from working out such remedies as are available to him in law, if so, advised before the appropriate forum.

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v. The effect and validity of the sale deed dated 27.06.2003 would not affect the petitioners, as this Court has declared that the scheme has lapsed.

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Sd/-

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_____________________ JUSTICE K.S. HEMALEKHA

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MBM

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List No.: 1 Sl No.: 96

M/S Yellamma Dasappa Medical College and Research Foundation v. the State of Karnataka

Case brief

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M/S Yellamma Dasappa Medical College and Research Foundation v. the State of Karnataka

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