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2012 DIGILAW 861 (KAR)

Pushpa Jain v. State of Karnataka

2012-10-04

ANAND BYRAREDDY

body2012
ORDER Anand Byrareddy, J. ”It is the case of the petitioner that she is the absolute owner of property bearing Survey No. 14/2 measuring about 4 acres 32 guntas of Kodigerahalli, Yelahanka Hobli, Bangalore North Taluk, which she had purchased under two registered sale-deeds. She had purchased 2 acres 10 guntas and 8 guntas of kharab under a sale-deed dated 30.1.1982 from M. Channappa, son of Muni Channappa, and 2 acres and 10 guntas and 8 guntas of kharab from one Suvarna, daughter of late Dr. Sunderraj under & sale-deed dated 12.2.1982. Pursuant to the purchase, mutation entries were made in her name with effect from the year 1981-82. The two items of property, are contiguously situated, and the petitioner had developed the same and grown coconut trees, which were about 25 years old as on the date of the petition and had erected a compound wall all around the property. She had even obtained an endorsement from the Bangalore Development Authority (Hereinafter referred to as "the BDA" for brevity), issued by the Additional Land Acquisition Officer, BDA, dated 4.3.1982, to the effect that the land in question was not subject to any acquisition Proceedings. The petitioner claimed that she has remained in peaceful possession from the date of her purchase. She has obtained conversion of the land for residential purposes from the competent authority as per order dated 19.7.1996 and had paid a conversion fee of 3.76 lakh as on 26.6.1996. It transpires that the City Municipal Council, (Hereinafter referred to as "the CMC", for brevity) Byatarayanapura, Bangalore had proposed to acquire land to an extent of 3500 square feet of the petitioner and the petitioner had voluntarily surrendered the same, while seeking for exemption of payment of developmental charges. The said CMC is now within the jurisdiction of the Bruhat Bengaluru Mahanagara Palike (Hereinafter referred to as the "BBMP", for brevity) and accordingly, she has been paying taxes to the BBMP, Bangalore. 1-A. In this background, the fourth respondent, which is a Housing Society, on the basis of certain records that have come into existence with the active assistance of respondents 2 and 3, has laid claim to the petitioner"s land on the ground that the same has been acquired for the benefit of the fourth respondent. This, the petitioner learnt only in the first week of November 2007. This, the petitioner learnt only in the first week of November 2007. The petitioner had immediately issued a notice to the BDA and also the Town Planning Authority, restraining them from sanctioning a layout plan, said to have been submitted by the fourth respondent. A copy was marked to the fourth respondent as well. The fourth respondent had replied furnishing details of the purported acquisition proceedings. It is thereafter that the petitioner had obtained copies of the documents pertaining to the alleged acquisition proceedings and learnt that the petitioner"s land was shown as having been notified as per Notification dated 28.4.1983, to the extent of 23 guntas in Survey No. 14/2. The petitioner having purchased the property in January and February 1982, under two sale-deeds and the revenue records reflecting the petitioner"s name as the owner and khatedar, the Notification having been issued in the name of the erstwhile owners, is a preliminary objection that the petitioner raises to the alleged acquisition proceedings. Pursuant to the Preliminary Notification, a Final Notification had also been issued confirming the acquisition made to the extent of 23 guntas of the petitioner"s land. That Notification was dated 28.2.1985. 1-B. The petitioner had also approached the BDA for change of land user with an intention to develop the property commercially and to establish an Information Technology Park, in respect of which the BDA had issued a Notification dated 27.3.2007, which fortifies the case of the petitioner that she has been in continuous possession of the property since the year 1982 and therefore, the fourth respondent having included a portion of the petitioner"s land as part of the layout said to have been formed by the fourth respondent and having indicated a portion of the petitioner"s land as a park, is clearly mischievous and it is in that background that the petition is filed. 2. The learned Senior Advocate Shri. Ashok Haranahalli appearing for the learned counsel for the petitioner would reiterate the above facts and circumstances and would demonstrate that the layout said to have been formed by the fourth respondent is separated from the petitioner"s land by a road. No part of the layout is formed over the petitioner"s land and possession could not have been taken of any portion of the petitioner"s land as it is surrounded by a compound wall. No part of the layout is formed over the petitioner"s land and possession could not have been taken of any portion of the petitioner"s land as it is surrounded by a compound wall. The 23 guntas of land indicated as having been acquired, is in the middle of the petitioner"s property and there is no access to the said area unless the compound wall is breached and since the petitioner has continuously remained in possession, it is prima facie established that the petitioner"s land has never been the subject matter of acquisition proceedings. In any event, possession has continued to remain with the petitioner and therefore, the alleged notification issued under Section 16(2) of the Land Acquisition Act, 1894 (Hereinafter referred to as "the LA Act", for brevity) is clearly a got-up document, without reference to the actual state of affairs. The petition having been filed in the year 2008, cannot be said to be barred by delay and laches, as the petitioner was completely in the dark of any alleged acquisition proceedings, as she had no personal notice of the same and she has not been disturbed from the property even as on the date of the petition and it is only on the issuance of a public notice immediately preceding the petition, that the petitioner has learnt of the mischief and is therefore before this court seeking appropriate reliefs. 2-A. The learned Senior Advocate would take this court through the record, which is made available, to further demonstrate that the petitioner"s land was never acquired nor could it be the subject matter of any acquisition proceedings having regard to the location of the land and the fact that it is completely isolated from the alleged layout. The learned Senior Advocate would draw attention to a layout plan to demonstrate that the land of the petitioner is completely isolated from the alleged layout. 3. The fourth respondent has entered appearance and has filed statement of objections vehemently opposing the petition. The learned Counsel appearing for the fourth respondent would contend that the petition is liable to be rejected at the threshold on the ground of delay and laches. 3. The fourth respondent has entered appearance and has filed statement of objections vehemently opposing the petition. The learned Counsel appearing for the fourth respondent would contend that the petition is liable to be rejected at the threshold on the ground of delay and laches. The land was the subject matter of a Preliminary Notification of the year 1983 and Final Notification of the year 1985 and the claim of the petitioner that she has purchased the property in the year 1982, is presumed to be aware of the notifications and therefore, the casual explanation sought to be advanced to explain the inordinate delay, cannot be accepted on the face of it. The acquisition proceedings have culminated in the land vesting in the State and possession having been handed over to the fourth respondent as of the year 1992 is evidenced by Annexures - R. 2 and R. 3 and therefore, the acquisition proceedings cannot be subjected to challenge in the writ petition. 3-A. The revenue entries in respect of the land measuring 23 guntas in Survey No. 14/2 has already been effected in the name of the fourth respondent. It is one other reason that the petitioner is precluded from challenging the acquisition proceedings. The claim of the petitioner that she had obtained an order of conversion in the year 1996 in respect of the entire extent of 4 acres 32 guntas or that there was a change of khata in her favour would have no relevance in the light of the acquisition proceedings having culminated in the possession of the land having been handed over to the fourth respondent. 3-B. The State Government had initiated acquisition proceedings for the benefit of the fourth respondent, by acquiring more than 200 acres of land for the formation of a residential layout known as Sahakara Nagar Layout. That was the subject matter of challenge before this court in a writ petition filed by one Bachhamma in WP 6574/2005 on the ground that her name did not find place in the Preliminary Notification. The said petition was dismissed by order dated 18.7.2007, on the ground that it was hit by delay and laches The layout plan, including the land in question, has been sanctioned by the BDA much earlier and the question of a separate approval in respect of the petitioner"s land did not arise. The said petition was dismissed by order dated 18.7.2007, on the ground that it was hit by delay and laches The layout plan, including the land in question, has been sanctioned by the BDA much earlier and the question of a separate approval in respect of the petitioner"s land did not arise. Therefore, the acquisition proceedings sought to be challenged after a period of 25 years is liable to be rejected without any further consideration. 4. The State Government has filed its statement of objections formally opposing the petition with reference to the documents available and supporting the case of the fourth respondent. 5. By way of reply, the learned Senior Advocate Shri. Haranahalli would repeat that the petitioner was unaware of the acquisition proceedings till November 2007. The petitioner was indisputably the owner of larger extent of 4 acres and 32 guntas. The Preliminary Notification does not indicate that the petitioner is the owner though the revenue records clearly reflected the petitioner as the owner as on the date of the Preliminary Notification. Therefore, the petitioner having been denied a valuable right in seeking to protect her property and raise her objections to the acquisition, the question of delay and laches would have no relevance. The learned Senior Advocate would also dispute the genuineness of Exhibit R. 1 produced by respondent No. 4 and would point out that what has been produced is not a certified copy issued by the competent authority and the purported award does not bear a date. Similarly, Annexures-R. 2, R. 3, R. 4 and R. 5 do not advance the case of the fourth respondent. 5-A. The learned Senior Advocate would further draw attention to documents produced along with a Rejoinder, to demonstrate that there was a writ petition filed by one K.R. Srinivas and K.A. Anand in WP 3074/2006 in public interest, in which respondent No. 4 apart, from the CMC, Byatarayanapura and the BDA as well as the State Government were the other respondents. The petitioners therein had contended that the Society had formed sites in areas reserved as parks, civic amenity and open spaces as well as valley area and in areas reserved for making a bye-pass road and that the process was illegal selling of those sites and that the layout was formed in contravention of the sanctioned plan and had sought for directions to preserve and protect the reserved areas. That petition was disposed of with a direction to the BDA to consider the representations of the petitioners therein and to take appropriate action. Since the BDA did not immediately take any action, contempt proceedings were initiated. In the course of those proceedings, a report was submitted by the BDA to the effect that the Housing Society had offered to surrender 2 acres and 35 guntas of land in Survey No. 14/2P and Survey No. 14/3P of Kodigehalli and that in spite of an extent of 36 guntas, which had been unauthorisedly utilised for the formation of sites was yet to be handed over by the Society and copies of the proceedings of meetings held in the office of the Commissioner, BDA were produced and the Housing Society had made a representation to state that 2 acres 35 guntas was not included in the original plan approved by the BDA and requested the BDA to approve the modified layout plan incorporating 2 acres 35 guntas in respect of land in Survey No. 14/2 and 14/3. Those annexures are marked as W. 1, W. 2 and W. 3 along with the rejoinder. It is in that background that the petitioner had learnt of the moves by the Society to lay claim over a portion of land in Survey No. 14/2 and thereafter, the petitioner had discovered the mischief sought to be played by the Society in seeking to lay claim over a portion of the petitioner"s land and hence, the learned Senior Advocate would reiterate that there is no substance in the objections raised by the society. 5-B. Insofar as the layout plan produced by the petitioner is concerned, the learned Counsel would seek to point out that there is an area reserved for Group Housing indicated in the said Layout Plan in respect of Survey Nos. 14/3P. 5-B. Insofar as the layout plan produced by the petitioner is concerned, the learned Counsel would seek to point out that there is an area reserved for Group Housing indicated in the said Layout Plan in respect of Survey Nos. 14/3P. Therefore, it cannot be said that the petitioner"s land is totally isolated from the layout and the land in question measuring 23 guntas is meant as park zone for the said Group housing and therefore, would seek to sustain the claim of the fourth respondent. 5-C. Though the record does not contain the copies of the RTC extracts for the year 1981-82, the RTC extracts that are available would all clearly reflect that mutation entry was made in favour of the petitioner during the year 1981-82. To that extent, the petitioner"s claim that she was shown as the khatedar and anubhavdar in the revenue records is clearly evident. Further, insofar as possession having been taken by the Society and notification having been issued under Section 16(2) of the LA Act is in the face of the following curiosity. There is a document at Page 356 of the record with the legend "handing over and talking over of possession" and is duty signed by the President of the fourth respondent -Association acknowledging taking over of possession of land as on 7.8.1991. At page 342, there is an Official memorandum recording handing over of possession of lands, including the portion which is in dispute in this petition, by the Special Land Acquisition Officer, which is curiously dated 3.10.1992 and there is also reference, to an indemnity bond executed by the Society also dated 3.10.1992. It also refers to the letters under which conditions were laid down by the Government, pursuant to which such possession has been handed over, dated 30.9.1992 and 1.10.1992. Therefore, the claim of the Society having taken possession already in August 1991 and possession being handed over for the second time on 3.10.1992 renders the circumstance nebulous and doubtful. This lends credence to the claim of the petitioner that the petitioner"s land, which is sought to be acquired is inaccessible as it is surrounded by a compound wall and possession has continued to remain with the petitioner all along. This lends credence to the claim of the petitioner that the petitioner"s land, which is sought to be acquired is inaccessible as it is surrounded by a compound wall and possession has continued to remain with the petitioner all along. Insofar as the layout plan is concerned, the same would also indicate that the land of the petitioner is away from the layout formed by the fourth respondent and even in respect of the area which is said to be reserved for Group Housing, the same is away from the petitioner"s land and the portion that is sought to be acquired is completely surrounded by the petitioner"s land and could hardly form part of the layout. In the light of the above circumstances, the acquisition proceedings in respect of the petitioner"s land is therefore clouded with infirmities and is without opportunity to the petitioner of an hearing in the first instance in the absence of notice to her of such proceedings. Hence, the writ petition is allowed. Annexures N and P insofar as they relate to land in Survey No. 14/2 measuring 23 guntas of Kodigehalli, Yelahanka Hobli, Bangalore North Taluk are hereby quashed.