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2014 DIGILAW 355 (KAR)

Ananda P. v. State of Karnataka

2014-03-14

ANAND BYRAREDDY

body2014
ORDER 1. Heard the learned Counsel for the petitioners and the respondents. 2. The petitioners claim as owners of land bearing Survey No.1/2 measuring about 4½ guntas of Lottegollahalli village, Bangalore North Taluk. It is claimed that it belonged to one Patalappa, who died in the year 1995, leaving behind the petitioners as his legal heirs to succeed to the same. It is claimed that Patalappa was married to one Nagarathnamma and the petitioners are her children. After the demise of Patalappa, Nagarathnamma as Class-I heir, has managed the affairs of the estate and she died on 20.8.2011. And apart from land bearing Survey No.1/2 of Lottegollahalli of an extent of 4½ guntas, the family did not own any other land. Patalappa had however, constructed six small dwelling units in the year 1977 in the said extent and the said premises have been provided with electricity and water supply by the electricity and water supply agencies. It is stated that the land in question was notified along with the lands of several villages namely, Mathikere, Chikkamaranahally, Nagashettihalli, Bhoopsandra vide notification dated 3.1.1977 for the purported formation of the “Gokul II Stage Rajamahal Vilas II Stage Layout” and a final notification was issued on 2.8.1978. The father of the petitioners namely, Patalappa and other owners of the lands, who had developed their lands, had sought that the lands in question to be deleted from the acquisition proceedings as they were built up. It transpires that the said circumstances have been taken into account and there were notifications issued under Section 48 of the Land Acquisition Act, 1894 (Hereinafter referred to as the ‘LA Act’ for brevity), withdrawing from the acquisition in respect of the several extents of land in the vicinity as demonstrated vide Annexures -E and F to the writ petition. However, there were no orders passed insofar as the petitioners’ land was concerned. In any event, it is the case of the petitioners that though the layout was formed in certain areas namely, Mathikere, Bhoopasandra, Nagashettihalli, etc., the layout was not formed over the lands of other villages, including Lottegollahalli village, where the present petitioners’ land is situated. However, there were no orders passed insofar as the petitioners’ land was concerned. In any event, it is the case of the petitioners that though the layout was formed in certain areas namely, Mathikere, Bhoopasandra, Nagashettihalli, etc., the layout was not formed over the lands of other villages, including Lottegollahalli village, where the present petitioners’ land is situated. Therefore, it is contended that over the years, the petitioners have continued in possession of the property undisturbed and it is only prior to the present writ petition, that their possession was sought to be disturbed and therefore, are before this court seeking a declaration that the layout not having been formed over the petitioners’ land and possession never having been taken in respect of the same, the Scheme, pursuant to which, the acquisition proceedings were initiated, has lapsed in so far as the petitioners’ land is concerned and it ought to be declared as such and the acquisition proceedings to that extent be set at naught. 3. The learned counsel for the respondent -Bangalore Development Authority (BDA) has entered appearance and filed statement of objections and would seek to justify the acquisition proceedings. The learned Counsel would contend that the petition would have to be dismissed on the primary ground of delay and laches. The acquisition proceedings are of the year 1977 and the present petition being filed in the year 2013 is 36 years late and therefore, it is to be dismissed on the ground of delay and laches at the threshold, in the light of catena of decisions by the Supreme Court as well as this court. Further without prejudice to the above contentions, it is pointed out that the claim of the petitioners as to the land belonged to the petitioners and that it has been inherited from one Patalappa, is a question of fact, which the petitioners would have to establish before setting up any claim of ownership. There is no material on record to demonstrate that the petitioners are indeed the owners of the land. It is contended that the preliminary notification admittedly, was of the year 1977 and the final notification was of the year 1978 and the award has been passed in the year 1986. There is no material on record to demonstrate that the petitioners are indeed the owners of the land. It is contended that the preliminary notification admittedly, was of the year 1977 and the final notification was of the year 1978 and the award has been passed in the year 1986. The petitioners or their father had never filed any objections to the notifications and that they had never participated at the inquiry under Section 5-A of the LA Act and they are precluded from the acquisition proceedings directly or indirectly. The present petition seeking a declaration that the Scheme has lapsed, therefore, is an indirect attack on the acquisition proceedings, which is impermissible. The petitioners have no right whatsoever to challenge the same. In any event, the land is vested in the State Government and the Scheme having been implemented substantially, there is no scope for interference by this court. It is contended that after the award was passed in the year 1986, a possession certificate dated 7.11.1986 was issued and the notification under Section 16(2) of the LA Act was issued and the land vested in the State Government and hence, there is no warrant for interference. The learned Counsel has placed reliance on several decisions to contend that the petition being brought several decades after the acquisition proceedings having attained finality, there is no warrant for interference. It is stated that mere fact of the petitioners being in unauthorized occupation, if at all, of the land in question, would not enable them to claim that they have been in continuous possession in the light of the material documents produced of the respondent – BDA having followed up personally in taking possession of the land and integrating the same in the Scheme. 4. In the above facts and circumstances, it is to be seen that the award having been passed in the year 1986 pursuant to the final notification in the year 1978, the claim of the BDA is that the Scheme has been substantially implemented within a period of five years and thereafter has been successfully completed. However, it is not denied that the petitioners are even today in possession of the land in question. Though it is contended that the occupation is illegal, if indeed the BDA had implemented the Scheme fully and finally, it is inexplicable that the land occupied by the petitioner has remained untouched. However, it is not denied that the petitioners are even today in possession of the land in question. Though it is contended that the occupation is illegal, if indeed the BDA had implemented the Scheme fully and finally, it is inexplicable that the land occupied by the petitioner has remained untouched. If the petitioners were in unauthorized occupation of the same and the BDA seeking to contend that the Scheme has been fully implemented, would have required the petitioners being evicted from the land in question in accordance with law. There is no claim by the BDA that any such steps were taken or are intended to be taken and there was no impediment at any point of time for the BDA to take action against the petitioners or any other unauthorized occupants of the land in question. In any event, if the final notification was of the year 1978, the law requires that the Scheme, in respect of which, the acquisition proceedings were initiated, ought to have been implemented, within a period of five years. Even if there was substantial implementation at the end of 5 years, namely, by 1983, the Scheme ought to have been fully and finally implemented within a reasonable time. However, for reasons best known, and as contended by the learned Counsel for the petitioners, the Scheme not having been implemented, over the extent of land in several villages, apparently, the land in question were left out of the Scheme or were never intended to be integrated with the Scheme and to that extent, by operation of law, would have the effect of Scheme having lapsed. 5. The learned counsel for the BDA would interject to contend that the delay in the implementation of the Scheme was on account of several litigations that were initiated in the course of the implementation of the Scheme and it was stalled time and again by the several litigants and therefore, there was considerable delay in the implementation of the same and produced a copy of the order pertaining to one such proceedings in WP 24632/2012 decided on 2.1.2013. However, it is noticed that the said petition pertains to lands in Survey No.114, 115 and 117 of Mathikere village and had nothing to do with the land of the petitioners or the lands in the vicinity of the petitioners’ land. However, it is noticed that the said petition pertains to lands in Survey No.114, 115 and 117 of Mathikere village and had nothing to do with the land of the petitioners or the lands in the vicinity of the petitioners’ land. However, there is material filed along with the statement of objections, such as the mahazar indicating that there was a proceeding in taking over possession of the petitioners’ land as well as the notification issued under Section 16(2) of the LA Act. However, the actual taking over of physical possession of the land, even if it could be contended that such possession was taken, would have to be demonstrated by producing acceptable evidence. The issuance of notification under Section 16(2) would arise only if it is demonstrated that actual physical possession was taken pursuant to the acceptable evidence produced before the court. The only document which could possibly establish this would be the mahazar drawn up on the date of alleged taking of possession of the land in question. The mahazar that is produced at Annexure-R.4 to the statement of objections is a cyclostyled document with blanks filled in. It is a standard format used by the BDA in all its proceedings to demonstrate that the physical possession has been taken. The mahazar is routinely signed by few unknown persons whose parentage is not indicated nor their addresses. As pointed out innumerable times, the document, such as the mahazar, establishing taking of physical possession, is an important document, which would necessarily have to be utilised in establishing a fact. Especially, when it is disputed that the BDA has indeed taken possession, to establish that it would be necessary for the BDA, as in the present case on hand, to examine those persons, who were present and who had endorsed the said mahazar. It would be impossible to identify people, who are said to have signed the mahazar in the present case on hand, in the absence of their parentage or addresses. It is also not evident from the mahazar that the owner of the land was duly notified and if it was in occupation of persons, that such persons were intimated and on their refusal to vacate the premises, the mahazar has been drawn of taking such physical possession thereafter. There is no such evidence forthcoming from the mahazar. It is also not evident from the mahazar that the owner of the land was duly notified and if it was in occupation of persons, that such persons were intimated and on their refusal to vacate the premises, the mahazar has been drawn of taking such physical possession thereafter. There is no such evidence forthcoming from the mahazar. Since it is not in dispute that the land in question is under the occupation of the petitioners and others over time, the said mahazar would not be acceptable proof of the fact of having taken possession of the land in question. In any event, it is evident that the land in question was never integrated as part of the Scheme of formation of the Gokul II Stage Rajmahal Vilas II Stage Layout, for which the land was acquired. In which event, in so far as the land of the petitioners is concerned, the Scheme has lapsed and the acquisition proceedings are therefore redundant and stand quashed in so far as the petitioners’ land is concerned. The petition is allowed.