Sri Srinivasamurthy Vs the State of Karantaka

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION BEARING NO.R.D.U.35, L.T.B. 59, DATED 28.11.1959 AND NO.RD.6 LTB.64 DATED 19.08.1964 ISSUED BY 1^ST RESPONDENT AT ANNEXURE-D AND E, DECLARING THE SCHEME IS LAPSED AS PER SECTION 27 OF BDA ACT IN SO FAR AS PETITIONERS LAND BEARING SY.NO.46/3 OF DOOKANAHALLI VILLAGE, HAL 2^ND STAGE, BANGALORE-560 008 FOR AN EXTENT OF 13 GUNTAS.

¶63

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶64

6 -

¶65

NC: 2026:KHC:32873 WP No. 9066 of 2016

¶66

HC-KAR

¶67

CORAM: HON'BLE MR. JUSTICE R. NATARAJ

¶68

ORAL ORDER

¶69

The petitioners have sought for a writ in the nature of certiorari to quash the preliminary notification bearing No.RDU.35.LTB.59 dated 28.11.1959 and final notification bearing No.RD.6.LTB.64 dated 19.08.1964 issued by respondent No.1. The petitioners have also sought to declare the acquisition proceedings for formation of HAL 2^nd Stage layout as illegal and void ab-initio as the scheme is lapsed under Section 24(2) of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (henceforth referred to as 'Act of 2013') in so far as the land bearing Sy.No.46/3 of Dookanahalli village, HAL 2^nd Stage, Bengaluru, measuring 13 guntas.

¶70

(i) The petitioners contend that they are the absolute owners of the land bearing Sy.No.46/3 of Dookanahalli Village, HAL 2^nd Stage, Bengaluru, measuring 13 guntas. They contend that the aforesaid land belonged to one Eliyappa, who is the father-in-law of the general power of attorney holder of the petitioners, Smt. Yashodamma. The said Eliyappa had

¶71

7 -

¶72

NC: 2026:KHC:32873 WP No. 9066 of 2016

¶73

HC-KAR

¶74

acquired the above land in terms of a gift deed from his grandmother Smt. Muniyamma on 21.10.1937. The petitioners claim that they have been residing in the aforesaid land since the year 1937. They claim that adjacent to the aforesaid land, a Trust has developed a building in Sy.No.46/1.

¶75

(ii) The petitioners contend that respondent No.1 had notified the above land along with other land for formation of a layout between the Old Madras Road and HAL Road vide preliminary notification dated 28.11.1959. Subsequently, a final notification was issued on 19.08.1964 including the land belonging to the petitioners along with other lands. The petitioners contend that the respondent No.2 had not taken over possession of the land bearing Sy.No.46/3 and that they continued in possession. The petitioners contend that as the possession of the property was not taken over, the acquisition has lapsed under Section 24(2) of the Act of 2013. The petitioners allege that the respondents are making hectic attempts to illegally dispossess them from the land. The petitioners contend that the legal representatives of Eliyappa had earlier filed W.P.Nos.5314-5323/2009 for quashing an endorsement dated 08.02.2008 and for a writ in the nature of

¶76

8 - NC: 2026:KHC:32873 WP No. 9066 of 2016

¶77

HC-KAR

¶78

mandamus to direct the respondents to consider the application for de-notification. They contend that the said writ petitions were disposed off upholding the acquisition but liberty was reserved to the petitioners therein to seek redressal of their grievance, if there were any structures on the land.

¶79

The learned Senior counsel for the petitioners reiterated the above contentions and submitted that the respondents have not taken possession of the land in question and that the petitioners continue in possession and therefore, the acquisition has not become final in so far as above land is concerned. He contends that the respondent No.2 has claimed that the possession was taken on three different dates namely, 30.08.1975, 05.11.1973 and 16.09.1975. He therefore, contends that there is nothing to show that the structure that existed on the property was removed by the respondent No.2 in any manner known to law. He therefore, contends that the respondent Nos.2 and 3 have not been able to establish that they have taken actual possession of the property. He therefore, submits that the acquisition has spent in itself and no purpose would be served in dispossessing the petitioners as

¶80

9 -

¶81

NC: 2026:KHC:32873 WP No. 9066 of 2016

¶82

HC-KAR

¶83

the respondents cannot integrate a small bit of land into the layout.

¶84

The writ petition is opposed by the respondent No.2 and 3, who have filed statement of objections contending that the petitioners have not pleaded or stated in the petition as to how they are related to the property or to the notified khatedar of the property in question. It is contended that the petitioners have also not produced any material to show that they inherited or succeeded to the property in question as the heirs of the notified khatedar. Therefore, the writ petition at the instance of the petitioners is not maintainable. It is also claimed that the land in Sy.No.46/3 of Dookanahalli village has been notified for formation of HAL 2^nd Stage and Sri. Yellappa bin Iyappa was the notified khatedar. A notice under Sections 9 and 10 of the Land Acquisition Act, 1894 was served on the notified khatedar on 13.10.1964. An award was passed and approved by the competent authority on 27.04.1971 determining compensation payable at Rs.8,184.41 and a notice under Section 12(2) of the Land Acquisition Act was served on the notified khatedar on 28.08.1975. Possession of the said property was taken on 16.09.1975. Award amount of

¶85

10 -

¶86

NC: 2026:KHC:32873 WP No. 9066 of 2016

¶87

HC-KAR

¶88

Rs.8,184.41 was deposited before the Principal City Civil Judge, Bengaluru on 19.01.1999 and a revalidated cheque No.776770 dated 21.03.2000 was submitted. Therefore, it is contended that the respondent Nos.2 and 3 have taken possession of the aforesaid land on 16.09.1975 after notifying the khatedar. It is contended that the acquisition proceedings are completed and the land is utilized for the purpose for which it is acquired. It is also claimed that the petitioners cannot assail the notifications after five decades and they have not given any reason for filing the petition belatedly.

¶89

(i) An affidavit of the Special Land Acquisition Officer of the respondents is filed, which discloses that the power of attorney of the petitioners had filed W.P.No.4480/2009 for the following reliefs:-

¶90

(a) Issue an order, direction or writ in the nature of writ of certiorari quashing the notification dated 31.01.2009 issued by the 2^nd respondent made No.BDA/Commissioner/DS-1/CA-Sites/920/ 2008-09, as per Annexure - A in so far as petitioner land is concerned.

¶91

(b) Declare that the possession taken in respect of 10 guntas of land of 13 guntas is non est, void

¶92

11 - NC: 2026:KHC:32873 WP No. 9066 of 2016

¶93

HC-KAR

¶94

and ineffective for the reason that no physical possession has been taken by the respondents.

¶95

(c) Issue writ of mandamus, directing the respondents to consider the representation of the petitioner and the family members dated 28.07.2007 as per Annexure - L and to denotify the land in question from the acquisition.

¶96

(ii) The said writ petition was dismissed in terms of an order dated 25.08.2010. However, liberty was reserved to the petitioner therein to establish her title before the competent Civil Court in accordance with law.

¶97

(iii) It is also claimed that the petitioners and others have filed O.S.No.7230/1995 against respondent No.2 for perpetual injunction. The said suit was dismissed in terms of the judgment and decree dated 09.12.1999. It is also contended that the land claimed by the petitioners is earmarked as civic amenity site in the layout plan and the same is allotted to Bhoruka Charitable Trust. It is claimed that the possession of the land was taken and handed over to the Engineering Section on 23.09.1975 for formation of a layout.

¶98

12 -

¶99

NC: 2026:KHC:32873 WP No. 9066 of 2016

¶100

HC-KAR

¶101

(iv) Along with this affidavit, Annexure - R5 is filed, which discloses that the possession of the land bearing Sy.No.46/3 was taken over on 30.08.1975. A statement is also made in O.S.No.7230/1995, referred supra that possession of the land in Sy.No.46/3 was taken over on 05.11.1973.

¶102

The learned counsel for respondent Nos.2 and 3 submitted that the petitioners have challenged the acquisition after nearly six decades and therefore, the writ petition is not maintainable. He also contends that the petitioners specifically contend in the writ petition that the land bearing Sy.No.46/3 belonged to one Sri. Eliyappa, who is the father-in-law of the General Power of Attorney holder of petitioners and that Sri. Eliyappa had acquired the above said land in terms of a gift deed dated 21.10.1937. He therefore, contends that unless the petitioners establish their title, they are not entitled to file petition seeking the reliefs mentioned in the writ petition. He also contends that precisely for this reason that W.P.No.4480/2009 filed by the General Power of Attorney holder of petitioners herein was dismissed and liberty was reserved to establish her title before the competent Civil Court in accordance with law. He submits that Power of Attorney

¶103

13 - NC: 2026:KHC:32873 WP No. 9066 of 2016

¶104

HC-KAR

¶105

holder of the petitioners has not taken any steps of whatsoever nature to establish her title over the property bearing Sy.No.46/3 of Dookanahalli village, HAL 2^nd Stage, Bengaluru. Hence, he submits that no indulgence be shown to the petitioners. He also submits that the petitioners have deliberately suppressed the filing of O.S.No.7230/1995 against the respondent No.2 in respect of the very same property and that the said suit was dismissed as not maintainable. Besides this, he contends that the possession of the property is taken long back and a layout is fully developed and hence, acquisition cannot lapse either under Section 27 of the BDA Act or under Section 24(2) of the Act of 2013. He therefore, prays that this writ petition be dismissed with exemplary cost for keeping the litigation alive for more than six decades.

¶106

In reply, the learned Senior counsel for the petitioners invited the attention of the Court to Annexure - R3, which is a sketch of the property of Sy.No.46/3 drawn by the Assistant Executive Engineer of respondent No.2 which shows that an old Mangaluru tile roof building and extended portion of building with AC sheet roof exists on the land bearing Sy.No.46/3. He also invited the attention of the Court to

¶107

14 -

¶108

NC: 2026:KHC:32873 WP No. 9066 of 2016

¶109

HC-KAR

¶110

Ex.R4, which is a note sheet prepared by the Executive Engineer of BDA to remove two unauthorized temporary sheds constructed over the land in Sy.No.46/3. He therefore, submits that structures exists on the land bearing Sy.No.46/3 and therefore, the petitioners are entitled to protect their possession.

¶111

I have considered the submissions of the learned Senior counsel for the petitioners as well as the learned counsel for the respondent Nos.2 and 3.

¶112

Some of the predecessors of the petitioners herein had earlier filed O.S.No.7230/1995 against the respondent No.2 for perpetual injunction to restrain the respondent No.2 from interfering with their peaceful possession and enjoyment of the suit property or from demolishing the existing structure on the suit property. The said suit was dismissed while recording a finding on a preliminary issue regarding maintainability of the suit. In the said suit, there is a reference that respondent No.2 claimed that the possession of the land in Sy.No.46/3 was taken over on 05.11.1973. After dismissal of the suit, power of attorney of the petitioners filed

¶113

15 -

¶114

NC: 2026:KHC:32873 WP No. 9066 of 2016

¶115

HC-KAR

¶116

W.P.No.4480/2009 for the reliefs mentioned supra. A Coordinate Bench of this Court held,

¶117

"There is serious dispute regarding title of the property in question between the parties. The matter requires factual adjudication. Therefore, I decline to entertain this writ petition and it is accordingly dismissed. However, liberty is reserved to the petitioner to establish her title before the competent Civil Court in accordance with law."

¶118

It also appears that the other legal representatives of Eliyappa filed W.P.Nos.5314-5323/2009 for quashing endorsement dated 08.02.2008 and for a writ in the nature of mandamus to consider their application for denotification. The said writ petition was purportedly disposed off reserving liberty to the petitioners therein to seek redressal of their grievance, if there was any structure on the land. It is therefore, evident that the petitioners have kept the litigation alive in one form or the other and they have filed the present petition in the year 2016 again challenging the notifications under which land in question was acquired. The only contention urged by the learned Senior counsel for the petitioners is that the possession

¶119

16 -

¶120

NC: 2026:KHC:32873 WP No. 9066 of 2016

¶121

HC-KAR

¶122

of the land in question is not taken and that the petitioners continued to occupy the structure existing over the property. In order to establish the same except enclosing a few photographs, the petitioners have not produced any documents to show that the structure was existing prior to the year 1959 when the preliminary notification was issued, more particularly when the petitioners emphatically claimed that they have been residing in the land since the year 1937. Therefore, no indulgence can be shown to the petitioners in this writ petition and the contentions urged by the learned Senior counsel for the petitioners is not substantiated properly.

¶123

Be that as it may, since the respondent Nos.2 and 3 have found that a structure exists on the land bearing Sy.No.46/3 of Dookanahalli village, HAL 2^nd Stage, Bengaluru, and having regard to the purport of Section 38D of the Bangalore Development Authority Act, it is only appropriate to direct the respondent Nos.2 and 3 to inspect the property again and if the petitioners file an application under Section 38D of the Bangalore Development Authority Act, 1976, the respondent Nos.2 and 3 shall consider the same in accordance with law and pass appropriate orders.

¶124

17 - NC: 2026:KHC:32873 WP No. 9066 of 2016

¶125

HC-KAR

¶126

In order to expedite the process, respondent No.2 shall inspect the land in Sy.No.46/3 of Dookanahalli village, HAL 2^nd Stage, Bengaluru, on 31.07.2026 and ascertain whether petitioners are residing in the houses constructed thereon . If an application is filed by the petitioners before 31.07.2026, the respondent No.2 shall consider the same within an outer limit of two months from the date of filing of the application and pass appropriate orders. Until such time, respondent Nos.2 and 3 shall not demolish existing structures on the land bearing Sy.No. 46/3 of Dookanahalli village, HAL 2^nd Stage, Bengaluru. The petitioners shall also not take advantage of this order and put up any additional structure of whatsoever nature.

¶127

If respondent Nos.2 and 3 reject the application filed by the petitioners filed under Section 38D of the BDA Act, then having regard to the fact that respondent Nos.2 and 3 have deposited the compensation in the year 1999, in respect of acquisition proposed in the year 1959, the respondent No.2 shall rework the compensation in accordance with the Land Acquisition Act, 1894, by treating the date of deposit before the Civil Court as the date of the preliminary notification.

¶128

18 -

¶129

NC: 2026:KHC:32873 WP No. 9066 of 2016

¶130

HC-KAR

¶131

While doing so, respondent Nos.2 and 3 shall ensure that the statutory benefits are granted as provided under Section 23 of the Land Acquisition Act, 1894.

¶132

The petition stands disposed off on the above

¶133

terms.

¶134

Sd/(R. NATARAJ) JUDGE

¶135

PMR List No.: 1 Sl No.: 21

Sri Srinivasamurthy v. the State of Karantaka

Case brief

What is this about?

What did the court decide?

Sri Srinivasamurthy v. the State of Karantaka

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sri. B. Venkatesh, Vs State of Karnataka

Sri Aswathanarayana, Vs the State of Karnataka

Hana S Khan Ghori Vs the State of Karnataka

Sri v K Patel Vs the Commissioner

Sri Shaik Irshad Vs the State of

Sri. K. Muniraju Vs Smt. Lakshmidevi