Sri. B. Shantilal Vs the State of Karnataka

THE KARNTAKA INDUSTRIAL AREA DEVELOPMENT BOARD (METRO) NO.14/3, ARVINDA BHAVAN, NRUPATHUNGA ROAD, BENGALURU-560001. REPRESENTED BY ITS LAND ACQUISITION OFFICER.

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BANGALORE DEVELOPMENT AUTHORITY SANKEY ROAD,

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BENGALURU-560002.

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LAND ACQUISITION OFFICER BDA, SANKEY ROAD,

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BENGALURU-560002.

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BANGALORE METRO

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RAIL CORPORATION LTD., REG. OFFICE AT BMTC COMPLEX, 3^RD FLOOR, K.H. ROAD, SHANTI NAGAR, BANGALORE-560027. (R5 IMPLEADED VIDE COURT ORDER DATED 04.11.2019)

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…RESPONDENTS

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(BY SRI HARISHA A.S., AGA FOR R-1;

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SRI P.V. CHANDRASHEKAR, ADVOCATE FOR R-2;

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SRI MURUGESH V. CHARATI, ADVOCATE FOR R-3 & R-4; SRI VENKATESH P. DALWAI, ADVOCATE FOR R-5)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ANNEXURE-G DATED 27.07.2011, UDD/169/MNX/2011 ISSUED BY THE RESPONDENT NO.1 AND ETC.,

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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 MRS. JUSTICE K.S. HEMALEKHA

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ORAL ORDER

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The petitioner in this Writ Petition is seeking to quash the order dated 27.02.2011 issued by respondent No. 1 and for further direction to set aside the order dated 13.07.2015 transferring the land from respondent No. 3 to respondent No. 2.

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Brief facts:

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The land measuring 5 acres 12 guntas in Survey No. 22 and 23 guntas in Survey No. 23 were notified for acquisition by a preliminary notification dated 12.12.2005 issued under Section 17(1) and Section 17(3) of the Bangalore Development Authority Act, 1976 (hereinafter referred to as ‘the Act’) for the formation of Peripheral Ring Road between Hosur Road-Mysore Road and Tumkur Road on the outskirts of Bangalore city. The petitioner initially filed objections to the said acquisition, stating that he had no objection to the same. Subsequently, on

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21.05.2008, another preliminary notification was issued under Sections 17(1) and 17(3) of the Act for acquisition of 9 acres 30 guntas in Survey No. 22 for formation of the ‘Nada Prabhu Kempe Gowda Nagar Layout’. On 18.06.2008 the petitioner filed objection seeking to drop the proceedings. Consequently, 9 acres 30 guntas in Survey No. 22 were left out of acquisition. However, on 27.07.2011 a final notification was issued notifying 5 acres 12 guntas in Survey No. 22 and 23 guntas in Survey No. 23 for construction of Truck Terminals and BMTC depots. The petitioner again filed objections. Subsequently, on 02.12.2015, the KIADB issued a notice to the petitioner stating that 9 acres 30 guntas in Survey No. 22 had been notified for acquisition for Metro Rail Project, to which the petitioner again filed objections. Presently, 5 acres 12 guntas in Survey No. 22 and 23 guntas in Survey No. 23 has been acquired for the purpose of Truck Terminals and BMTC depots.

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Heard learned counsel appearing for the petitioner, learned AGA for respondent No.1-State, learned counsel for respondent No.2, learned counsel for respondents 3 and 4 and, learned counsel for respondent No.5.

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The petitioner contends that though the notification was issued in the year 2005, the scheme has not been implemented, resulting in a lapse. In respect of ‘Nadaprabhu Kempe Gowda Nagar Layout’ after the preliminary notification, no final notification was issued, and the BDA had not intended to proceed with the acquisition. It is further contended that there was a delay of six years between the preliminary and the final notification and that possession has not been taken. The issuance of Annexure-L to transfer 5 acres 12 guntas in Sy. No. 22 and 23 guntas in Survey No. 23 is illegal, as possession has not been taken. The petitioner asserts that the purpose of acquisition has been changed and that it is

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impermissible to transfer the land to another statutory body.

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Per contra, learned counsel appearing for respondent No. 2 submits that the petitioner's prayer is misconceived since the impugned communication is only an internal correspondence between the BDA and the Bangalore Metro Rail Corporation (for short ‘BMRCL’), wherein the BDA merely furnished the details of acquisition proceedings. It is stated that the Government issued preliminary notification under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966 (‘KIAD Act’), for establishment of BMRCL project, proposing to acquire 39,456.30 square meters. A notice under Section 28(2) of the KIAD Act was also issued to the petitioner, to which he filed objections. Instead of pursuing that remedy the petitioner filed the present writ petition. It is contended that all steps have been taken in accordance with law and the petition lacks merits.

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Respondent No. 3, the beneficiary-BDA, submits that the consent award has been passed in Land Acquisition Case No. 22/ 2011-2012 dated 16.07.2018 in respect of 5 acres 12 guntas in Survey No. 22 under Section 23 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (‘Act, 2013’ for short). Another order dated 19.07.2018 approved the said consent award granting developed site measuring 63,489 square feet. Similarly a consent award was passed in respect of 23 guntas in Survey No. 23. Possession was taken under the mahazar dated 05.09.2018. In view of the petitioner's consent to the award, the contention that no compensation has been paid does not survive. Once the petitioner has consented and accepted the benefit of developed sites he is estopped from challenging the transfer of land or seeking further reliefs.

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This Court has carefully considered the rival submissions and perused the material on record. From the

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records, it is evident that consent awards were passed as per Annexures R1 and R3, excerpts of which read as follows :

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“Annexure-R1

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Consent-Award /Award for developed sites 63,489 sq.ft (Sixty Three Thousand Four Hundred and Eighty Nine Sq.ft. Only) in respect of the land measuring 5 Acres 12 guntas of land in Survey No.22 of Challaghatta Village, Kengeri Hobli, Bangalore South Taluk is approved.

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The Additional Land Acquisition Officer, BDA, Bangalore shall verify and make sure that there are no stay orders from any Court and parallel acquisition before taking possession of the above said land. Further, the Addl. Land Acquisition Officer should take all necessary steps to see that compensation be paid to real owner of the land after obtaining original Title deeds etc”

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“Annexure-R3

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Consent-Award /Award for developed sites 6,588 sq.ft. (Six Thousand Five Hundred and Eighty Eight Sq.ft. Only) and Cash Compensation Rs.67,555/- ( Rupees- Sixty Seven Thousand Five Hundred and Fifty Five Only) and in respect of the

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land measuring 0-23 Guntas, 0-01 guntas including Kharab land in Survey No.23 of Challaghatta Village, Kengeri Hobli, Bangalore South Taluk is approved.

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The Additional Land Acquisition Officer, BDA, Bangalore shall verify and make sure that there are no stay orders from any Court and parallel acquisition before taking possession of the above said land. Further, the Addl. Land Acquisition Officer should take all necessary steps to see that compensation be paid to real owner of the land after obtaining original Title deeds etc.,”

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It is undisputed that the petitioner accepted the consent awards passed in the aforesaid Land Acquisition Cases under Section 23 of the Act, 2013 and that possession has been taken. Having consented to the acquisition and accepted compensation, the petitioner now cannot challenge the internal communication between the BDA and the KIADB. The Apex Court in the case of Northern Indian Glass Industries vs Jaswant Singh and Others¹ (Jaswant Singh) has held that once the

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1 AIR 2003 SC 234

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land vests in the Government free from all encumbrances,

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the land owner cannot seek restitution merely because it was not acquired for the purpose for which it is acquired. In view of the petitioner's consent to acquisition and accepting the consent award, there is no merit in the present Writ Petition. The challenge to the internal communication between the respondents is untenable.

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Accordingly, the Writ Petition is dismissed.

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Sd/-

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______________________ JUSTICE K.S. HEMALEKHA

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MBM/CKL List No.: 1 Sl No.: 44

Sri. B. Shantilal v. the State of Karnataka

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Sri. B. Shantilal v. the State of Karnataka

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