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2021 DIGILAW 585 (KAR)

Gowramma v. State of Karnataka

2021-05-05

S.R.KRISHNA KUMAR

body2021
ORDER S.R. Krishna Kumar, J. 1. In this petition, petitioners have sought for the following reliefs:- "i) Issue the Writ of Certiorari quashing the proceedings of the 479th Board Meeting dated: 07.03.2019 passed by R-2 at Annexure-A as void ab-initio and; ii) Issue a Writ of Mandamus directing the respondents to allot the alternative equivalent similarly situated land to the petitioners in place of their measuring 0-20 guntas in Sy No. 201/1A situated in Jigal "Village, Attibele Hobli, Anekal Taluk, which is used for formation of 100 feet road and; iii) Issue the Writ of Mandamus directing the respondents to pay damages t the petitioners by ascertaining the same thought the Sole Arbitrator for having used the land measuring 0-20 guntas in Sy No. 201/A all along without paying even an infinitesimal compensation to the petitioners and; iv) Grant of any other Writ order or direction as this Hon'ble Court may deem fit to grant in the circumstances of the case by allowing the Writ Petition in the interest of Justice and equity." 2. Heard the learned counsel for petitioners, learned AGA for respondent No. 1 and learned counsel for respondents 2 to 4 - KHB and perused the material on record. 3. In addition to reiterating the various contentions urged in the petition and referring to the documents produced, learned counsel for the petitioners submit that the petitioners are the wife and children of late Ashwathachari who expired on 07.11.2013. During his life time, subject land bearing Sy. No. 201/1A measuring 1 acre 15 guntas situated at Jigala village, Attibele hobli, Anekal taluk, was owned and possessed by him and the same was succeeded to by the petitioners upon his death. Upon coming to know that the respondents 2 to 4 - KHB intended to form a 100ft road in a portion of the aforesaid land, the said Ashwathachari addressed a letter dated 05.01.2012 to the KHB intimating them that he had no objection for the KHB to utilise a portion of his land bearing Sy. No. 201/1A subject to the condition that the KHB allots alternative land which is adjacent to his land to the extent his land was utilised by the KHB for formation of a road. However, no action was taken by the KHB in this regard. No. 201/1A subject to the condition that the KHB allots alternative land which is adjacent to his land to the extent his land was utilised by the KHB for formation of a road. However, no action was taken by the KHB in this regard. (i) Subsequently, upon the demise of Ashwathachari, the petitioners herein submitted representations dated 10.01.2014 and 21.01.2016 to the KHB reiterating the aforesaid request made by Ashwathachari and requesting the KHB to allot adjacent alternative land to the extent it was utilised by the KHB for formation of road. Meanwhile, in its proceedings dated 20.02.2014, the KHB discussed allotment of alternative land to the petitioners on account of utilisation of 20 guntas of land in Sy. No. 201/1 A belonging to the petitioners which had been utilised by the KHB for formation of road. However, no order in this regard was passed by the KHB. Instead, vide impugned order dated 07.03.2019, the KHB resolved to allot alternative developed land to an extent of 9583 sq.ft. per acre proportionate to an extent of 20 guntas of utilised land without indicating the locality of the said land proposed to be allotted to the petitioners. (ii) It is the grievance of the petitioners that apart from the fact that the valuable constitutional rights of the petitioners contemplated under Article 300-A have been violated by the impugned order in that the KHB has illegally and highhandedly utilised the subject land of the petitioners measuring 20 guntas without acquiring the same by due process of law, the impugned order offering alternative lands only to an extent of 9583 sq.ft. per acre i.e., to an extent of 4791.5 sq.ft. towards 20 guntas of land which is only about 22% of the said land of 20 guntas belonging to the petitioners is clearly arbitrary, illegal and deserves to be quashed and appropriate directions are to be issued against the respondents in this regard. per acre i.e., to an extent of 4791.5 sq.ft. towards 20 guntas of land which is only about 22% of the said land of 20 guntas belonging to the petitioners is clearly arbitrary, illegal and deserves to be quashed and appropriate directions are to be issued against the respondents in this regard. (iii) In support of his contentions, learned counsel for the petitioners placed reliance upon the following decisions:- (i) R.L. Jain v. Delhi Development Authority (2004) 4 SCC 79 : ( AIR 2004 SC 1904 ); (ii) Madishetti Bala Rahul v. Land Acquisition Officer (2007) 9 SCC 650 : (AIR Online 2007 SC 351); (iii) Tukaram Kana Joshi v. Maharashtra Industrial Development Corporation and others (2013) 1 SCC 353 : ( AIR 2013 SC 565 ); (iv) Bhimandas Ambavani v. Delhi Power Company Limited (2013) 14 SCC 195 : (2013 AIR SCW 3678); (v) Lara Ram v. Jaipur Development Authority (2016) 11 SCC 31 : (2015 AIR SCW 6849); (vi) Sri. P.G. Belliappa v. Commissioner, BDA, 2020(1) Kar LJ 504 : (2019 (2) AKR 416); 4. Per contra, learned counsel for the respondent- KHB in addition to reiterating the various contentions urged in the statement of objections, submits that since there was no undeveloped land available to an extent of 20 guntas which was utilised by the KHB, it was decided to allot developed land to an extent of 9583 sq.ft. per acre in favour of the petitioners in lieu of 20 guntas of land belonging to them which was utilised by the KHB for formation of road. It was therefore contended that there is no merit in the petition and the same is liable to be dismissed. 5. per acre in favour of the petitioners in lieu of 20 guntas of land belonging to them which was utilised by the KHB for formation of road. It was therefore contended that there is no merit in the petition and the same is liable to be dismissed. 5. The material on record indicates that it is an undisputed fact that the respondent has illegally and high handedly utilised 20 guntas of land of the petitioners without acquiring the same or by following due process of law and has thereby violated Article 300-A of the Constitution of India; it follows therefrom that the respondent is liable to take necessary steps to compensate the petitioner by either restoring the land, allotting equivalent alternative land, acquiring the land by taking recourse to acquisition proceedings under the Land Acquisition Act, 1894, in addition to paying compensation/rent to the petitioners for illegal use and occupation of the subject land measuring 20 guntas from 2012 onwards etc., Under identical circumstances, when the BDA had illegally taken possession and utilised lands without acquiring the same by due process of law, this Court in P.G. case (supra), after referring to the earlier decisions of the Apex Court, has issued the following directions:- "30. Accordingly, we dispose of the appeal and Cross-objections by passing the following order: ORDER (i) The impugned order dated 1 March, 2019 is modified; (ii) We direct the appellant-BDA to place the respondent in vacant and peaceful possession of the schedule land more particularly described in paragraph 1 of the writ petition within a period of three months from the date on which a copy of the judgment is made available on the official website of this Court; (iii) Notwithstanding the above directions, it will be always open for BDA to take recourse to acquisition proceedings under the said Act of 2013 by ensuring that a preliminary notification under Section 11 of the said Act of 2013 is issued within the aforesaid period of three months; (iv) If such a notification is issued within the aforesaid period of three months, the direction issued to place the respondent in possession of the schedule land will become inoperative, provided the acquisition proceedings are completed and compensation is paid within a reasonable time; (v) In the event the acquisition proceedings are not completed and compensation is not paid within a reasonable time, we grant liberty to the respondent to file a fresh petition seeking possession of the schedule land; (vi) As held in the case of R.LJAIN (supra), we direct an officer of the Government of Karnataka exercising the power of a Collector under the said Act of 2013 to determine the compensation/rent payable to the respondent from 7 February, 2002 till the date of publication of the notification under Section 11 of the said Act of 2013. The same shall be paid along with the compensation payable under the said Act of 2013; (vii) We make it clear that in the event the respondent is placed in possession of the schedule land in terms of the aforesaid direction, he will not be entitled to compensation as directed above; (viii) We direct the appellant-BDA to pay the costs quantified at Rs. 1,00,000/- (rupees one lakh only) to the respondent within a period of six weeks from the date on which a copy of the judgment is made available no the website of this Court; (ix) The appeal and cross objections are disposed of on the above terms". 6. The material on record indicates that the impugned order resolving to allot 9583 sq.ft. 6. The material on record indicates that the impugned order resolving to allot 9583 sq.ft. of developed land per acre comes to 22% of the 20 guntas of land illegally utilised by the KHB is without any basis and the reason assigned in the impugned order that the other land losers have agreed to receive only 9583 sq.ft of developed land per acre and therefore, petitioners are also entitled to only the said extent is clearly arbitrary, irrational and unreasonable and violative of Article 300-A of the Constitution of India. Under these circumstances, the impugned order at Annexure-A dated 07.03.2019 passed by the respondents 2 to 4 deserves to be quashed and necessary directions are to be issued against the respondents - KHB in this regard in the light of the decisions of the Apex Court and this Court referred to supra. 7. In the result, I pass the following:- ORDER (i) Petition is hereby allowed. (ii) The impugned order at Annexure-A dated 07.03.2019 passed by respondents 2 to 4 is hereby quashed. (iii) The respondents - KHB are hereby directed to allot alternative land to an extent of 20 guntas in favour of the petitioners and put them in possession of the same, after executing all necessary documents in this regard, within a period of three months from the date of receipt of a copy of this order. (iv) Notwithstanding the above directions, liberty is reserved in favour of the Karnataka Housing Board to take recourse to acquisition proceedings for the purpose of acquiring the subject land bearing Sy. No. 201/1A measuring 20 guntas under the provisions the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, by issuing preliminary notification under Section 11 of the said Act of 2013 within the aforesaid period of three months. (v) As held in the case of R.L. JAIN (supra), it is hereby directed that an officer of the Government of Karnataka exercising the power of a Collector under the said Act of 2013 to determine the compensation/rent payable to the petitioners from 05.01.2012 till the date of publication of the notification under Section 11 of the said Act of 2013. The same shall be paid along with the compensation payable under the said Act of 2013.