Sri. M. Shivananda, Vs the State of Karnataka

REPRESENTED BY HIS GPA HOLDER M/S TRINCO INFRA PVT LTD., NO.305A, ANAND ONYX, 2^ND FLOOR, 15^TH CROSS, 100 FEET ROAD, J.P. NAGAR, 5^TH PHASE, BENGALURU-560078.

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REPRESENTED BY MANAGING DIRECTOR, M.S. DIVYA.

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…APPELLANT

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(BY SRI. D.R. RAVISHANKAR, SENIOR ADVOCATE FOR SRI. K. VIJAYAKUMAR, ADVOCATE)

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HC-KAR

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT DEPARTMENT, VIKASA SOUDHA, BENGALURU-560 001.

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THE COMMISSIONER BANGALORE DEVELOPMENT AUTHORITY, CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560020.

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THE DEPUTY COMMISSIONER (LAND ACQUISITION) BANGALORE DEVELOPMENT AUTHORITY, CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560020.

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THE LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY, CHOWDAIAH ROAD, KUMARA PARK WEST, BENGALURU-560020.

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…RESPONDENTS

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(BY SMT. PRAMODHINI KISHAN, AGA FOR R1; SRI. G.S. KANNUR, SENIOR ADVOCATE FOR SRI. G. LAKSHMEESH RAO, ADVOCATE FOR R2 TO R4)

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THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 13/01/2023, PASSED IN W.P.NO.50291/2014 AND CONSEQUENTLY ALLOW THE WRIT PETITION OR PASS ANY OTHER APPROPRIATE ORDER/s AND ETC.

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THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED ON 27.01.2026, COMING ON FOR PRONOUNCEMENT OF

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HC-KAR

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JUDGMENT, THIS DAY VIJAYKUMAR A. PATIL J., DELIVERED THE FOLLOWING:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV JUDGMENT

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(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)

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This intra-Court appeal is filed by the appellant under

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Section 4 of the Karnataka High Court Act, 1961, challenging the order dated 13.01.2023 passed by the learned Single Judge in W.P.No.50291/2014 (LA-BDA).

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Sri.D.R.Ravishankar, learned Senior counsel

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appearing for Sri.K.Vijayakumar, learned counsel appearing for the appellant submits that the learned Single Judge has committed an error in dismissing the writ petition without appreciating the material available on record in its proper perspective. It is submitted that the respondents' record clearly demonstrate that till date, a portion of the suit schedule property is with the appellant and they have put up construction long back. It is further submitted that by virtue of the interim order granted by

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HC-KAR

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this Court on 07.11.2003 in W.P.No.45733/2003, the

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possession of the appellant was continued. It is also submitted that the appellant approached the Bangalore Development Authority (BDA) seeking for a copy of the award. The note sheet dated 19.11.2003 indicated that

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the award is in process of being drafted. In the meanwhile, the appellant approached the Government seeking de-notification of the schedule property. It is contended that the records indicate that no award was prepared or approved by the respondent on 19.01.2004. However, later the note sheets indicate otherwise and these note sheets are created with backdate to deny the legitimate right of the appellant. It is further contended that the respondents backdated the award and got it approved on 20.11.2003. The note sheet dated 20.11.2003 does not contain the seal and signature of the respondent No.3. However, it contains the seal and signature of the respondent No.4 which clearly demonstrates that the file was never sent to the office of

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HC-KAR

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the respondent No.3 on 20.11.2003. It is also contended

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that the respondent No.4 has taken the alleged possession on paper, barely two days after the issuance of notice dated 22.11.2003 and such an act of the BDA is to

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overcome the stay order dated 07.11.2003 of this Court wherein it was ordered not to dispossess the appellant. It is submitted that the award dated 20.11.2003 is passed contrary to law, no possession is taken from the appellant and hence, the entire acquisition proceedings is required to be declared as abandoned. It is further submitted that

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the mahazar dated 24.11.2003 is only a possession on paper and the actual possession of the land in question

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was not taken by the BDA. It is also submitted that in view of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, 'the 2013 Act'), the entire acquisition proceedings has lapsed as neither any award is passed nor possession is taken. Hence, he seeks to allow the appeal.

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HC-KAR

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Per contra , Sri.G.S.Kannur, learned Senior

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counsel for the respondent Nos.2 to 4 and the learned Additional Government Advocate for the respondent No.1 support the order of the learned Single Judge and submit that the acquisition is under the provisions of the Bangalore Development Act, 1976 (for short, 'the BDA Act') and the provisions of the 2013 Act has no application to the case on hand which was been rightly considered by the learned Single Judge. It is submitted that the appellant challenged the acquisition proceedings in W.P.No.45733/2003, which was disposed of by this Court on 19.01.2007 declining the challenge to the acquisition proceedings by granting liberty to the appellant to seek the benefit of allotment of site as per the decision in the

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case of JUNJAMMA AND OTHERS Vs. THE BANGALORE DEVELOPMENT AUTHORITY AND OTHERS¹ . Hence, the appellant cannot challenge the acquisition proceedings or seek for a declaration that the acquisition has lapsed or

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1 ILR 2005 KAR 608

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HC-KAR

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abandoned. It is further submitted that the acquisition has concluded long back, award is passed, the possession of the land is taken over by the BDA and now the appellant cannot re-open the issue of acquisition. Hence, they seek to dismiss the appeal.

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We have heard the arguments of the learned counsel for the appellant, the learned counsel for the respondents and meticulously perused the material available on record. We have given our anxious consideration to the submissions advanced on both the sides.

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The appeal of the land owner is liable to be rejected for the following reasons:

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(a) The appellant filed W.P.No.45733/2003 seeking the prayer to issue a writ in the nature of certiorari to quash the preliminary and final notifications dated 08.04.2003 and 10.09.2003, respectively. The learned Single Judge of this Court vide order dated 19.01.2007

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HC-KAR

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held that the challenge to the acquisition proceedings has

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been upheld in the case of JUNJAMMA AND OTHERS , referred supra, and based on the reasoning stated in the said case, the writ petition filed by the appellant was disposed of. The aforesaid decision provides for compensation and allotment of sites. The said decision between the appellant and the respondents has attained finality. The appellant filed W.P.No.50291/2014 seeking prayer to quash the preliminary notification dated 08.04.2003, final notification dated 10.09.2003, possession mahazar dated 24.11.2003 by giving effect to the provisions of Section 24(2) of the 2013 Act and further

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to declare that the acquisition in respect of the land measuring 3 acres in Sy.No.1/2, Mallathahalli Village, Yeshwanthapura Hobli, Bangalore North Taluk, under the preliminary and final notifications, have lapsed under Section 24(2) of the 2013 Act. It is to be noticed that the prayer sought in W.P.No.45733/2003 by the appellant and the prayer sought in W.P.No.50291/2014 are one and the

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HC-KAR

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same insofar as the challenge to the acquisition notifications issued by the respondents. Hence, the later writ petition filed by the appellant is hit by the doctrine of res judicata. The appellant in the later writ petition, sought the additional prayer of quashing the possession mahazar which is also hit by the principles of res judicata as the mahazar was drawn much prior to the disposal of the earlier writ petition filed by the appellant.

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(b) The prayer of the appellant to declare that the acquisition proceedings in respect of the land in question have been lapsed under Section 24(2) of the 2013 Act, is also liable to be rejected. It is not in dispute that the acquisition of the subject land is under the provisions of the BDA Act and not under the Land Acquisition Act, 1894 (for short, 'the LA Act'). It is trite law that the provisions of the 2013 Act has no application to the acquisitions made under the BDA Act. Our view gains support from the decision of the Hon'ble Supreme Court in the case of

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BANGALORE DEVELOPMENT AUTHORITY AND ANR.

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HC-KAR

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Vs. STATE OF KARNATAKA AND ORS.² The said

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decision is also considered by the learned Single Judge while rejecting the writ petition.

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(c) The records indicate that the respondents

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issued the preliminary notification on 08.04.2003 and the final notification on 10.09.2003. The appellant has filed

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the objections to the acquisition proceedings before the Authority which was considered and rejected. The State Government accorded sanction to the scheme submitted

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by the BDA on 04.09.2003 and thereafter, the final notification came to be issued. The Authority issued notice under Sections 9 and 10 of the LA Act, to the khatedars and interested persons and thereafter, passed an award on 20.11.2003 and the notice under Section 12(2) of the

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LA Act was issued to the khatedars and interested persons. The Authority took possession as is evident from

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the mahazar produced by the appellant and handed over the same to the Engineering Section on 24.11.2003. The

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2 (2018) 9 SCC 122

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HC-KAR

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Authorities specifically stated in their objections that the

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interim order granted by the learned Single Judge in the earlier round of the litigation was communicated to the Authority on 25.09.2003. By that time, the possession of

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the land was taken over by the Authority. Hence, the contrary contention that the possession mahazar is predated, not in accordance with law and the possession is taken during the operation of the interim order, has no merit. It is also to be noticed that the drawing of the mahazar and the passing of the award in respect of the land in question had taken place during the pendency of the earlier writ petition. The learned Single Judge, while upholding the acquisition proceedings, granted relief in terms of JUNJAMMA'S case referred supra . Hence, the petitioner cannot re-agitate the issues which have taken place during the pendency of the earlier writ petition and

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seek for adjudication of such issues which would amount to constructive res judicata . On this ground also, the appeal is liable to be rejected.

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HC-KAR

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(d) The contention of the appellant that the note

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sheet of the file indicates that the Authorities have not followed the proper procedure in passing the award, is also liable to be rejected. It is trite law that the observation of the Officers in the file notings, is only an opinion of the said Officer and not the decision as such and hence, such file notings are not justiciable. In the case on hand, the acquisition proceedings have attained finality in the earlier round of litigation. It is not open for the appellant to contend that the respondents-Authorities have failed to follow the procedure in taking possession of the land in question and in passing of the award. The appellant contended that they are in possession of the property and have put up the construction. Such aspects cannot be looked into in view of the fact that the acquisition proceedings have attained finality and have been concluded long back. If the appellants are in possession of the acquired land, such possession is required to be

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HC-KAR

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construed and understood as an illegal possession and without authority of law.

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The learned Single Judge, considering the contentions advanced and placing reliance on the law declared by the Hon'ble Supreme Court, dismissed the writ petition. We do not find any error or perversity in the finding recorded by the learned Single Judge calling for interference in this appeal.

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For the aforementioned reasons, the appeal is devoid of merit and is accordingly, rejected. Consequently, the pending interlocutory application stands disposed of.

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Sd/(ANU SIVARAMAN) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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RV

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List No.: 3 Sl No.: 1

Sri. M. Shivananda, v. the State of Karnataka

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Sri. M. Shivananda, v. the State of Karnataka

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