Smt. N Mala Vs State of Karnataka

SMT. N. MALA, W/O N SHIVAKUMAR, AGED ABOUT 44 YEARS, RESIDING AT NO.10, 12^TH CROSS, 12^TH MAIN, GIRINAGAR, 3^RD PHASE, AVALAHALLI EXTENSION, BANGALORE - 560 085.

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N. LALITHA KUMARI (SINCE DECEASED BY LRS)

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Digitally signed by REKHA R Location: High Court of Karnataka

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SRI VIJAY KUMAR N 2. AGED ABOUT 62 YEARS S/O SRI C NANJUNDAIAH RESIDING AT DODDAGALIHALLI, BADAKANAHALLY POST, PURAVARA HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT - 572 175.

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MS. SANGEETHA V., AGED ABOUT 23 YEARS, D/O SRI. VIJAYKUMAR N., RESIDING AT NO. 25, 1^ST CROSS, 2^ND MAIN, BESIDE SRIHARI APARTMENTS,

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AVALAHALLI NEW EXTENSION, MYSORE ROAD, BANGALORE - 560 026.

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…APPELLANTS

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(BY SRI. UDAYA HOLLA, SENIOR ADVOCATE A/W SRI. DHYAN CHINNAPPA, SENIOR ADVOCATE FOR CHANDRASHEKAR S., ADVOCATE FOR

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SRI. VIVEK HOLLA, ADVOCATE)

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AND:

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STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HOUSING, VIDHANA SOUDHA, BANGALORE - 560 001.

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THE COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY, KUMARA PARK (WEST), BANGALORE - 560 001.

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…RESPONDENTS

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(BY SRI.M.N. SUDEV HEGDE, AGA FOR R1, SRI. MURUGESH V. CHARATI, ADVOCATE FOR R2)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961 PRAYING TO CALL FOR RECORDS IN WP NO.7400/2016 SET ASIDE THE JUDGEMENT/ORDER DATED:02.09.2024 PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.7400/2016(LA-RES) AND ALLOW THE WRIT PETITION FILED BY THE APPELLANTS AND ETC.,

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE T.M.NADAF

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE T.M. NADAF)

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The unsuccessful petitioners in W.P.No.7400/2016 are before us in this appeal under Section 4 of Karnataka High Court Act, 1961, challenging the order dated 02.09.2024. Under the impugned order the Writ Court dismissed the petition on the ground of delay in laying the challenge to the acquisition proceedings, which has not been properly explained in the writ petition.

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The parties are referred to as per their rankings before the Writ Court.

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Brief factual matrix leading to filing of this appeal is as follows:

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The land in dispute to an extent of 22 guntas in Sy.No.33/2 of Avalahalli Village, Uttarahalli Hobli, Bangalore South Taluk, was allotted under a Partition

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Deed dated 25.04.1979 in the family of the petitioners.

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After the partition, the names of the family members of the petitioners were continued in the RTC and they are paying the tax to the Government.

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For formation of the 'Banashankari III Stage

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Layout, a proposal was made to acquire land to an extent of 1305 Acres and 1/4 Guntas in various villages namely,

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properties in Gavipuram, Sunkanahalli, Avalahalli, Kathriguppe, Ittamadu, Hosakerehalli and Gerehalli, which were notified for Bangalore Improvement Act, 1945¹ under the erstwhile City Improvement Trust Board² . In the preliminary Notification dated 09.05.1968, the land of the petitioners' family has been proposed to be acquired reflecting the name of Narasimhaiah bin Channappa as the Khatedar. The Preliminary Notification is followed by Final Notification passed under Section 18(1) of the Act of 1945 on 28.10.1971, including Sy.No.33/2 and Sy.No.29 of

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1 Act of 1945

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2 CITB

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Avalahalli Village. It is further contended that in view of

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the several challenges laid by the Vyalikaval House Building Co-operative Society, Banashankari III Stage layout scheme could not be implemented on account of several issues.

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It is a further case of the petitioners that they are in continued possession of the properties and laid a challenge to the acquisition proceedings.

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The Writ Court dismissed the writ petition, on the ground that the Notification under Section 16(2) of the Land Acquisition has already been published on 02.02.1982 and Award has been passed and amount has been deposited before the reference Court. Further observed that, the challenge is now sought in 2016, the acquisition after 38 years without explaining the same and dismissed the acquisition on the ground of delay and laches.

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Heard Sri.Uday Holla, learned Senior counsel

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along with Sri.Dhyan Chinnappa, learned Senior counsel, for Sri.Chandrasekhar.S, learned counsel and Sri.Vivek Holla, learned counsel for appellants and Sri.M.N.Sudev Hegde, learned Additional Government Advocate for respondent No.1 and Sri.Murugesh V.Charati, learned counsel for respondent No.2.

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Sri.Uday Holla, learned Senior counsel and Sri.Dhyan Chinnappa, learned Senior counsel primarily argued on the application filed seeking to produce documents and contended that an application for review

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has been filed seeking to review the order impugned in this appeal, declining to review the order made the appellants to file the appeal belatedly. In the application for additional documents, the appellants have produced the documents to show that several houses were built on the disputed lands and the area is developed and roads have been laid and they are paying taxes to the concerned department. Even the photographs produced depicting

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that luxurious buildings existing on the lands and some to

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tombs of certain persons in the sites are formed on the

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land made available in the said application.

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They have also produced an endorsement

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issued by the Special Land Acquisition Officer, Bangalore Development Authority dated 06.09.2014, stating that the land in Sy.No.33/2 of Avalahalli Village, Bangalore South Taluk, Bangalore has not been notified in any project, however, with certain conditions stated therein. They further submits that several houses were built on the said 22 guntas of land and the petitioners along with family

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and other family members are residing past several years. They further submits that though the lands sought to be acquired, they are not at all been utilized for the purpose and abandoned for all these years. The learned Single

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judge has failed to consider these aspects of the matter and sought to allow the Writ Appeal. Further to the query

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made whether these documents are filed before the Writ Court in writ petition or in review petition, both the

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learned Senior counsels fairly submits that these

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documents were not produced by them either in the writ petition or in review petition.

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Upon consideration of the submissions and the documents produced, wherein it clearly depicts that in the entire land, the houses were built and that they have paid all the betterment charges and they are paying the necessary taxes to the concerned departments. When we queried, Sri.Murugesh V.Charati regarding the factual situation, he submits that if there are any constructions, the appellants can claim the remedy under Section 38A of

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the BDA Act, in view of the concluded acquisition proceedings. The factual situation on the ground prima facie is otherwise, as per the records now produced, however, we refrain ourselves from making any observations on the said facts, since these documents produced along with the application were not produced before the Writ Court either in the writ petition or in review petition. We deemed it appropriate to remand the

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matter for fresh consideration to the Writ Court. The

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remand order is occasioned since the documents now sought to be placed before us were not produced before the Writ Court to consider and deliberate on the same. In

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that view of the matter, we dispose of the appeal, remanding the matter to the learned Single Judge restoring the writ petition by setting aside the order passed in W.P.No.7400/2016 dated 02.09.2024, to consider the documents produced along with the application and request the Writ Court to pass appropriate order thereon.

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For the foregoing reasons, we pass the following:

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ORDER

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(i) Writ Appeal is allowed .

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(ii) The order dated 02.09.2024 in W.P.No.7400/2016 is set aside and the matter stands remand to the Writ Court for fresh consideration, in view of the documents produced along with application

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