Sri G Chikka Bayanna Vs the State of Karnataka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THE LAND ACQUISITION PROCEEDINGS INITIATED BY THE RESPONDENTS BY ISSUE OF PRELIMINARY NOTIFICATION UNDER SEC. 4(a) OF LAND ACQUISITION ACT VIDE DATED 17.03.2001 AT ANNEX-C IN PURSAUNT TO WHICH FINAL NOTIFICATION ISSUED BY R-1 UNDER SUB-SEC.(1) OF THE SEC. 19. R/W SEC. 36 OF THE BANGALORE DEVELOPMENT AUTHORITY ACT DATED 04.03.2002 AT ANNX-D AND IN PURSUANT TO WHICH THE AWARD NOTICE ISSUED U/S. 12(2) IN LAC NO.202/01-02 DATED 01.10.2003 AT ANNEX-E BY R-3 FOR ACQUISITION OF THE SCHEDULE PROPERTY OWNED BY THE PETITIONERS STOOD LAPSED BY EFFLUX OF TIME AND BY OPERATION OF LAW BY VIRTUE OF SEC. 24(2) OF LAND ACQUISITON ACT 2013 SINCE THE POSSESSION OF THE LAND NOT HAVING BEEN TAKEN, THE SCHEME UNDER WHICH ACQUISITION WAS INITIATED HAS LAPSED AND CONSEQUENTLY AS WELL AS THE ACQUISITION;

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL

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ORAL ORDER

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Petitioners are before this Court claiming to be the owners to an extent of 19 guntas of land in Sy.No.16/1 situated at Gottigere village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore District, having purchased the same in terms of a Deed of Sale dated 30.11.1967. That respondent No.3-BDA had issued a Preliminary Notification under Section 17(1)and (3) of the Bangalore Development Authority Act, 1976 (for short 'BDA Act') on 17.03.2001 seeking to acquire their properties for the purpose of formation of layout called and known as ''Further Extension of Anjanapura Layout''. That a Final Notification was issued under Section 19(1) of the BDA Act on 04.03.2002. That the award notice dated 01.10.2003 had been issued under Section 12(2) of Land Acquisition Act, 1894 awarding compensation of Rs.5,15,622/-. However, the petitioners have not received the said compensation and have protested acquisition of the properties by the respondent-authorities.

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It is further case of the petitioners that they made a representation to the Chief Minister of the Government of Karnataka and had requesting to denotify the property on the premise that they owned only 19 guntas of land which is the

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only source of income and that they are the small farmers and if the said land was acquired they would be rendered homeless.

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That the petitioners had earlier approached this Court by filing a writ petition in W.P.Nos.4101-4104/2013 seeking quash of the Preliminary Notification and Final Notification and the said writ petition was dismissed reserving liberty to the petitioners to avail such remedy as may be available under law and that it is this liberty which has given them the fresh cause of action. Thus, petitioners have filed the present petition on the ground of non-utilization of the property belonging to the petitioners for the purpose to which was acquired resulting in lapsing of the acquisition in terms of Section 27 of the BDA Act.

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Learned counsel for the petitioners reiterating the averments and the grounds urged in the petition refers to the order dated 25.01.2016 of the Co-ordinate Bench of this Court in the case of Mr.K.Vinod Kumar vs. State of Karnataka

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and others passed in W.P.Nos.38462 and 38531/2014 (LA-BDA) to contend that under similar circumstances in respect of the very same layout the Co-ordinate Bench of this

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Court has held that the scheme having lapsed. Thus, he contended that the present writ petition and the grounds urged therein distinguishable from the one which was urged in the previous writ petition.

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Learned counsel for the petitioners further vehemently submits that even to this date admittedly the 19 guntas of land in Sy.No.16/1 belonging to the petitioners is kept vacant as seen in the statement of objections filed by way of affidavit of the respondent-authorities. Thus, he submits said provisions of Section 27 of the BDA Act would squarely applicable to the case of the petitioners. Hence, seeks for allowing of the petition declaring the acquisition having been lapsed.

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Per contra, learned counsel for the respondent-BDA taking this Court through the contents of the affidavit dated 13.11.2024 and documents produced therewith submits that under the preliminary notification and final notification large extent of lands were acquired by the respondents -BDA for the purpose of formation of "Further Extension of Anjanapura Layout" consisting of 5 blocks which are 5^th G block, 9^th block,

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10^th block, 11^th block and 12^th block. It is contended that land belonging to the petitioners in Sy.No.16/1 measuring 19 guntas falls within the 12^th block. It is further contended that the entire further extension of layout has been formed expending enormous State revenue and sites have been allotted to various persons. It is however stated that land in Sy.No.16/1 is kept vacant to be utilized for the purpose of formation of civic amenities, parks and formation of sites and for construction of apartments for bulk allotment and other uses by BDA as per the Scheme.

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Learned counsel for the respondents-BDA further submits in order to invoke provisions of Section 27 of the BDA Act, petitioners ought to have made out a ground that there is dereliction of duty on the part of the respondents-BDA and that the Scheme in its entirety has not been implemented. He submits mere reference to parcel of the land belonging to the petitioners cannot be a ground to invoke Section 27 of the BDA Act. He further submits that petitioners having raised similar grounds in the earlier writ petition which resulted in dismissal is

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estopped from raising the same grounds in the present writ petition. Hence, seeks for dismissal of the writ petition.

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Heard. Perused the records.

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At the outset it is to be seen that the petitioners on

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earlier occasion had approached this Court by filing a writ petition in W.P.Nos.4101-4104/2013 which was disposed of on 22.10.2013. Copy of which is produced at Annexure-N. It is relevant to refer to paragraphs 3, 4 and 5 of the said order, which is as under;

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"3. The petitioners claim that they are the owners of the property bearing Sy.No.16/1 measuring 19 guntas situate in Gottigere village, Uttarahalli Hobli, Bangalore South Taluk. Petitioner No.1 claims to have purchased the same under a sale deed dated 30.11.1967. The mutation entries in the record of right are also relied on. The property in question was sought to be acquired for formation of the layout known as “Further Extension of Anjanapura Layout” by the respondent-Authority. The preliminary notification was issued on 17.03.2001 and the final notification was issued on 04.03.2002. The award in respect of the said land has also been passed.

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4. Learned counsel for the petitioners while assailing the said notification would contend that the said extent of the land is the only extent to which the petitioners are entitled and it is also contended that the

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said extent has not been made use of by the respondents for the purpose of formation of the road. In that regard, it is contended that the notifications are to be quashed and the petitioners should be granted benefit of enjoyment of the property.

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5. Firstly, as noticed, the final notification was issued on 04.03.2002 and the award was also passed immediately thereafter on 01.10.2003. More than a decade has passed by and it is not the case of the petitioners that the compensation has not been received by them. Mere ignorance pleaded would not constitute sufficient explanation to condone such long delay and laches in assailing the notification, more particularly in a circumstance where under the said notification, several items of properties belonging to different landowners had been acquired for formation of the said layout and one of the items of the property is that of the petitioners".

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Contents of paragraph 4 of the said order would

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indicate that the petitioners had raised an identical ground on an earlier occasion i.e., non-utilization of the land belonging to the petitioners which has been declined by this Court. The liberty which the petitioners claim have been reserved in their favour in the said order giving raise to fresh cause of action is misconceived. This Court in the earlier order had merely made an observation that the contentions of the petitioners of they

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being in possession was a different aspect which cannot be looked into in the writ petition and if they were entitled for any remedy, they were at liberty to avail the same. Such a liberty would not give any fresh cause of action for the petitioners to repeat the same ground of non-utilization of the land and consequent lapsing of scheme enabling them to file the present petition. As such, the petition is liable to be dismissed on this ground alone.

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Notwithstanding the above, even on the merits, it is settled position of law that for the purpose of invoking Section 27 of the BDA Act, it is necessary for the petitioners to aver that there is a dereliction of duty on the part of the respondentauthorities in implementing the Scheme and that the Scheme has not been implemented substantially. There is not even a whisper in this regard in the grounds urged by the petitioners.

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Section 27 of the BDA Act, is extracted hereunder for immediate reference;

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"27. Authority to execute the scheme within five years.- Where within a period of five years from the date of the publication in the official Gazette of the declaration under sub-section (1) of section 19, the Authority fails to execute the scheme substantially,

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the scheme shall lapse and the provisions of section 36 shall become inoperative."

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Thus, perusal of the above provision makes it clear

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for a Scheme to lapse there shall be failure on the part of the authority to execute the Scheme substantially within a period of 5 years from the date of publication in the official gazette and the declaration under sub-section (1) of Section 19 which is not the case at hand.

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Division Bench of this Court in the case of KANTHAMMA AND OTHERS VS. STATE OF KARNATAKA

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AND ANOTHER reported in ILR 1984 KAR. 1494 has held as

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under;

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"6. For the scheme to lapse there must be proof regarding the failure on the part of the authority to execute the scheme substantially within five years from the date of publication in the Official Gazette of the declaration under Section 19(1) of the Act. It seems to us that in the first place the "failure to execute the scheme" envisaged under Section 27 means that there must be dereliction of statutory duties without justification and not a mere delay in the execution of the scheme. Secondly, the "substantial execution" in the context depends upon the magnitude of the scheme and the nature of the work executed and remains to be executed.

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7. In the very nature of the project in question, it is almost impossible for this Court to embark upon an

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enquiry on the contention raised by the Learned Counsel. The Court as observed by the learned Single Judge would be slow to interfere with the public projects, massive or minor, unless there is compelling reason. We do not find any such compelling reason in this Court."

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Reliance placed on by the counsel for the petitioners to the order passed by the Co-ordinate Bench of this Court in the case of Mr.K.Vinod Kumar vs. State of Karnataka and others passed in W.P.Nos.38462 and 38531/2014 (LABDA) is not applicable to the present case, inasmuch, in the said case respondent-BDA had admittedly given an endorsement having abandoned the project/scheme in respect of the property belonging to the petitioner therein, which is not the case of the present petitioners.

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Be that as it is. From the averments made in the affidavit of the respondents-BDA and the documents produced therewith in its discernable that the Scheme has been implemented substantially consisting of five blocks and admittedly property belonging to the petitioners formed part of block No.12. Merely because there is a statement of said portion of the property being kept vacant, the same cannot be construed to the effect that the entire Scheme is lapsed.

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In that view of the matter, petition lack merits and the

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same is dismissed .

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Sd/(M.G.S. KAMAL) JUDGE

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RU List No.: 1 Sl No.: 28

Sri G Chikka Bayanna v. the State of Karnataka

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Sri G Chikka Bayanna v. the State of Karnataka

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