The Bengaluru Development Authority Vs the State of Karnataka

THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 28/02/2024 PASSED BY THE HON'BLE LEARNED SINGLE

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JUDGE IN WP NO.4934/2021 AND ALLOW THE WRIT APPEAL BY DISMISSING THE WRIT PETITION & ETC.

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IN C.C.C. NO.811/2024:

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BETWEEN:

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SRI. R. VENKATA RAJU S/O LATE RAMA REDDY AGED ABOUT 60 YEARS.

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SRI. R. RAVIKUMAR S/O LATE RAMA REDDY AGED ABOUT 51 YEARS.

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SRI. R. MANJUNATH S/O LATE RAMA REDDY AGED ABOUT 46 YEARS.

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ALL ARE RESIDING AT THALAGHATTAPURA VILLAGE KANAKAPURA MAIN ROAD BENGALURU 560062.

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...COMPLAINANTS

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(BY SRI. UDAYA HOLLA, SR. ADV., FOR SRI. K.S. MALLIKARJUNAIAH, ADV.,)

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AND:

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JAYARAM .N COMMISSIONER THE BENGALURU DEVELOPMENT AUTHORITY KUMARA PARK WEST BENGALURU-560 020.

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MANJUNATH .M.N THE LAND ACQUISITION OFFICER THE BENGALURU DEVELOPMENT AUTHORITY BENGALURU-560 020.

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...ACCUSED

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(BY SRI. MURUGESH V. CHARATI, ADV., FOR A1 SMT. PRAMODHINI KISHAN, AGA FOR A2)

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THIS CCC IS FILED UNDER SECTION 11 AND 12 OF THE CONTEMPT OF COURTS ACT, 1971, PRAYING TO INITIATE CONTEMPT PROCEEDINGS AGAINST THE ACCUSED FOR WILLFUL OPEN DEFIANCE AND DELIBERATE VIOLATION OF THE ORDER DATED 28.02.2024 IN W.P.NO.4934/2021 BY THIS HON'BLE COURT VIDE ANNEXURE - A & ETC.

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THIS WRIT APPEAL CONNECTED WITH C.C.C. HAVING BEEN HEARD AND RESERVED ON 16.02.2026, COMING ON FOR PRONOUNCEMENT OF 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 appeal is filed by the appellants under Section 4 of the High Court of Karnataka Act, 1961, challenging the order dated 28.02.2024 passed by the learned Single Judge in W.P.No.4934/2021 (LA-BDA).

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The brief facts leading to the filing of this appeal are that respondent Nos.2 to 6 filed the writ

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petition challenging the order dated 16.07.2018 at Annexure-K passed by respondent No.1, sought to issue writ in the nature of certiorari to quash preliminary notification and final notifications dated 07.11.2002 and

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09.09.2003 respectively. The appellant-Bengaluru

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Development Authority ( 'BDA' ) filed detailed objections to the writ petition and sought for dismissal on various grounds. The learned Single Judge allowed the writ petition by directing the appellant-BDA to restore the possession of the land in Sy.No.16/1 measuring 34 guntas of Thalaghattapura village in favour of the original petitioners. It was further directed that the possession is to be restored only if the petitioners have not withdrawn the compensation amount said to have been deposited by the BDA in the civil Court and if it is found that the land owners have withdrawn the amount in deposit, they are entitled to seek possession only after refund of entire amount along with interest at 6% p.a. Being aggrieved, the BDA is in appeal.

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Sri.Murugesh V.Charati, learned counsel

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appearing for the appellants makes the following submissions:

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a) The learned Single Judge has failed to consider that the petitioners' writ petition in W.P.No.924/2004 was disposed of by upholding the acquisition proceedings by granting relief to submit representation seeking for exclusion of the lands, if the lands are fully developed. The present petition is filed again challenging the acquisition proceedings which is impermissible.

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b) The finding of the learned Single Judge that the State Government passed the impugned order taking technical view in regard to invoking Section 48(1) of the Land Acquisition Act, 1894 (for short, 'the LA

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Act' ). The material on record indicates that the possession of the land is taken, award is passed and land is vested with the State Government and BDA,

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which cannot be divested. The order of the learned

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Single Judge to restore the possession is impermissible once the land is vested with the State Government on passing of award and taking possession. It is submitted that non-development of the land in question cannot be a ground to order for restoration of land, the authority can always form the layout.

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c) It is submitted that this Court in the case of

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Smt.Gangamma (Since Dead by LRs) vs. State of Karnataka¹ has held that the scheme has been substantially implemented. It is further submitted that the co-ordinate bench in the case of Sri . S.Jagannath and others vs. The Bengaluru Development Authority and others² has upheld the acquisition insofar as Sy.No.16/5 of Thalaghattapura village on similar set of facts.

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1 W.A.No.1026/2006 and connected appeals dtd.03.04.2025

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2 W.A.5623/2016 AND connected matters dtd 30.06.2021

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d) It is also submitted that the petitioners in W.P.No.13267/2005 have challenged the

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endorsement dated 29.12.2007 by which the prayer for deletion of land from the acquisition was rejected insofar as Sy.Nos.76/5, 76/6, 16/1, 16/3, 16/4, 16/5 and 19. The learned Single Judge vide order dated 29.06.2010 dismissed the writ petition in W.P.No.14116/2008 which was challenged in W.A.No.4229/2011 which was dismissed by the coordinate bench. The aforesaid order was challenged before the Hon'ble Supreme Court in SLP (C) No.9712/2012 which was dismissed. Hence, he contends that there cannot be any direction to restore the land in favour of the respondents.

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Hence, he seeks to allow the appeal.

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Per contra, Sri.Uday Holla, learned Senior

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counsel appearing for Sri.K.S.Mallikarjunaiah, learned counsel for respondent Nos.2 to 7, supports the order of

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the learned Single Judge and submits that in an earlier round of litigation, the learned Single Judge specifically granted liberty to seek deletion of their lands from acquisition proceedings if the lands are totally built up. It is submitted that in terms of the said liberty, the respondents gave representation to BDA and the BDA accepted the said representation, passed the resolution to delete the land on the ground that the area is totally built up and the proposal was forwarded to the Government; now the BDA cannot take a different stand. It is further submitted that the State Government without considering the resolution of BDA, rejected the proposal of BDA on technical ground as the award is passed and possession is taken without considering whether it is totally developed or not. It is also submitted that the alleged mahazar produced by the appellants is not mahazar in the eye of law. The mahazar does not indicate the names of persons

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from whom possession is taken and there are no witnesses, hence, taking possession under the cyclostyled

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mahazar is impermissible. It is contended that the land losers have not received the compensation nor have they withdrawn the amount in deposit. It is further contended that the sketch at Annexure-F clearly indicates that the land in question is isolated from the acquired land and learned Single Judge has recorded a clear finding based on the report of appellant-BDA placed before him. Hence, now the BDA cannot contend that they will form the layout in small extent of land which is fully developed by ignoring the fact that surrounding lands are either de-notified or the acquisition is quashed. Hence, he seeks to dismiss the appeal.

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We have heard the arguments advanced by the learned counsel appearing for the appellants, learned Senior Counsel appearing for respondent Nos.2 to 7, learned Additional Government Advocate appearing for the respondent No.1 and 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 respondent Nos.2 to 7 filed the writ petition

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challenging the order dated 16.07.2018 passed by respondent No.1-State, wherein the request for deletion of land from acquisition was considered and rejected; further prayer of certiorari to quash preliminary and final notifications dated 07.11.2002 and 09.09.2003 in respect of land measuring 34 guntas in Sy.No.16/1 of Thalaghattapura village on the ground that no layout is formed and the land is fully built up. The learned Single Judge allowed the writ petition by recording a finding that the BDA itself has resolved to recommend the Government for deletion of land, the land in question become isolated from other land, layout cannot be formed, hence, ordered for restoration of possession to private respondents subject to condition that if they have not withdrawn the compensation amount deposited in civil Court and further if withdrawn, till they refund the entire award amount with interest at 6% p.a.

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It is to be noticed that the land of private respondents has been acquired under preliminary notification dated 07.11.2002 under Section 17(1) & (3) of the BDA Act and final notification dated 09.09.2003 under Section 19(1) of the BDA Act. The acquisition is for the scheme envisaged by appellant-BDA which has been approved by respondent-State under the provisions of BDA Act for formation of layout called further extension of Banashankari VI Stage. The acquisition proceedings were challenged by the land owners including the private respondents herein in WP No.44949/2003 and connected matters (W.P.No.924/2004 filed by the private respondents). The learned Single Judge vide order dated 06.06.2006 upheld the acquisition by rejecting the writ petitions challenging the preliminary notification and final notification and other process of the acquisition with certain directions, direction No.B reads as under:

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"B-(i) All the petitioners who are the landowners/converted site owners (duly converted for non-agricultural use of land, in accordance with law), who are seeking dropping of the acquisition proceedings in so far as their respective lands/sites are concerned, on the ground that: (a) their lands are situated

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within green belt area (b) they are totally built up; (c) converted for non-agricultural use; (4) garden and recognised nursery lands; (e) who have built hospitals, educational Institutions and factories; (f) who have not been served with the notice of acquisition and (g) whο are in doubt about the inclusion of their land in the notification are permitted to make appropriate application to the authorities seeking such exclusion and exemption and producing documents to substantiate their contentions within three months from the date of this order.

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(ii) It is made clear that the authority shall consider such request keeping in mind the status of the land as on the date of preliminary notification and to exclude any developments, improvements, constructions put up subsequent to the preliminary notification and then decide whether their cases are similar to that of the landowners whose objections were upheld and in respect of those lands no final notification is issued.

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(iii) In the event the Authority comes to the conclusion that those persons are similarly placed and are covered by the Resolution of the BDA dated 28.06.2003 in Subject No.177/2003, then to de-notify their lands/sites, built up portion and exclude them from acquisition.

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(iv) Petitioners who are interested in availing this benefit shall make appropriate application within 90 days from the date of this order and thereafter, the authority shall give notice to those persons, hear them and pass appropriate orders expeditiously.

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(C) Till the aforesaid exercise is undertaken by the Authority on the applications filed by the petitioners either for allotment of site or for de-notifying or exemption sought for are considered, their possession shall not be disturbed and the existing construction shall not be demolished. After consideration of the application in the light of the aforesaid direction, the Authorities are at liberty to proceed with the acquisition.

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(D) The suggestion made by this Court in paragraph-25 during the course of this order may be considered in all earnestness, particularly, in the cases of those who have already put up construction and living therein prior to preliminary notification."

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The challenge to the acquisition in respect of

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land in question has attained finality by virtue of order of

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learned Single Judge referred supra. The learned Single Judge granted liberty to the land owners to seek dropping of acquisition proceedings of their lands on the ground that their lands are situated within (a) green belt area (b) they are totally built up (c) converted for non agricultural use (d) garden and recognized nursery land (e) who have built hospitals, educational institutions and factories (f) who have not been served with a notice of acquisition (g) who are in doubt about the inclusion of their lands in the notification. The records indicate that pursuant to the said liberty, the private respondents submitted representation to the appellant-BDA seeking to drop the acquisition proceedings on the ground that the area is totally built up. The BDA considered the representation and passed a resolution recommending the State Government to delete the subject land from acquisition proceedings and forwarded the resolution/proposal to the State Government for further action. It is to be noticed that the acquisition insofar as

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the land in question is concerned has attained finality even

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as per the resolution of the BDA, the award is passed, compensation amount is deposited in the civil Court and possession of the land is taken by the BDA, however, recommendation is made for exclusion of land on the ground that the land is fully developed.

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It is not in dispute that the land is vested with the State Government, free from all encumbrances, after taking over the physical possession of the land, passing of the award and having deposited compensation before the civil Court. The State Government considered the proposal of the BDA for exclusion of land from acquisition proceedings and under the impugned order dated 16.07.2018 at Annexure-K rejected the request of private respondents for deletion of land from acquisition proceedings on the ground that possession of land is taken over, award is passed and compensation amount is deposited. The learned Single Judge based on the report submitted by the BDA during the writ proceedings

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recorded the finding that no sites have been formed in Sy.No.16/1. It is not in dispute that the sites have not been formed and allotment is made to the third party. Learned Single Judge has also recorded the finding that to the North of Sy.16 there is a Gramatana, to the East Sy.No.16/2 which has not been notified and to the West the land is deleted from purview of acquisition and reference with regard to the same is made in W.P.No.6876/2021. The learned Single Judge has also recorded the finding that land bearing Sy.No.16/1 measuring 34 guntas would be an isolated pocket of the land and therefore the question of BDA forming meaningful layout would not arise. It is to be noticed that the order in W.P.No.6876/2021 is challenged in W.A.No.5623/2017 by the BDA. The sketch on record indicates that the land in question is adjacent to Bengaluru-Kanakapura Road on one side, hence it cannot be called as an isolated land and layout cannot be formed.

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Insofar as implementation of scheme by the appellant-BDA is concerned, the co-ordinate bench in the case of Smt.Gangamma referred supra, recorded a clear finding that further extension of Banashankari VI Stage has been substantially implemented. It is to be noticed that the land owners in Sy.No.16/5 of Thalaghattapura village, assailed the request for deletion of land in W.P.No.14116/2008, which was dismissed by the learned Single Judge by order dated 29.06.2010. The said order was challenged in W.A.No.4229/2011 and later the same was assailed before the Hon'ble Supreme Court in SLP (Civil) No.9712/2012, the same was dismissed by the Hon'ble Supreme Court. It is further noticed that similar contentions were urged by the neighbouring land owners, the same has attained finality. Hence, the finding that the subject land became an isolated pocket as held by the learned Single Judge may not be correct.

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The perusal of the order dated 16.07.2018 at Annexure-K of respondent No.1 clearly indicates that the

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State Government has considered the recommendation of appellant-BDA, representation of land owner and recorded a clear finding that the land in question is not completely covered with buildings and the said finding is based on the material placed before it. This Court cannot be expected to sit as an appellate authority and reverse the finding of facts without there being any contrary material. The learned counsel for the appellants has pointed out that the mahazar dated 25.01.2003 in respect of land in question, clearly indicates that as on the date of taking possession under the said mahazar there were only 2 ACC sheets were noticed. It is also to be noticed that the appellantBDA has passed the award insofar as land in question, malkis and structure as is evident from the award notice dated 22.12.2003 produced as Annexure-R4 and the entire compensation amount is deposited before the civil Court. The contention of the private respondents that the area is fully developed cannot be accepted in view of categorical finding by respondent No.1 that land is not fully developed

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and does not fall within the direction of learned Single Judge dated 06.06.2006 and rejected the request for exclusion of land from acquisition proceedings. We do not find any error in the finding recorded by respondent No.1 at Annexure-K. The learned Single Judge has ordered to restore possession back to the land owner, the said finding itself makes it clear that the possession of the land is with appellant-BDA and they have passed the award, compensation amount is deposited before the civil Court and the net effect of this process is the vesting of land with the State and with the appellant-BDA. In our considered view when the State Government who has a power to delete the land from acquisition by exercising power under Section 48(1) of LA Act records a clear finding that the land is vested and there cannot be any divesting of the land in favour of the land owner in the absence of facts that land is not fully developed. We are of the considered view that we cannot substitute our view to the view of the State Government which has been

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conferred with power to de-notify the land under the provision of law based on a mere assertion that the land is fully built up. In our further considered view, the challenge to the acquisition by private respondents in the present proceedings cannot be entertained in view of attainment of finality of acquisition proceedings in the earlier round of litigation. The only question required to be considered in this appeal is with regard to the correctness of the order dated 16.07.2018 and for the reasons recorded supra, we are of the view that there is no justifiable grounds are made out by respondent Nos.2 to 7 to grant a relief of deletion of land from the acquisition proceedings after vesting of the land with the State.

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Hence, we are of the considered view that the learned Single Judge has committed an error in recording a finding that the land in question became an isolated pocket and layout cannot be formed and proceeded to order for restoration of possession of land in Sy.No.16/1 measuring 34 guntas.

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