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2022 DIGILAW 130 (KAR)

G. S. Sachidananda Murthy v. State of Karnataka

2022-02-02

S.R.KRISHNA KUMAR

body2022
JUDGMENT S.R. Krishna Kumar, J. - In this petition, petitioner seeks declaration that the acquisition proceedings pursuant to the preliminary notification dated 31.05.1963 issued by the City Improvement Trust Board (for short 'the CITB') and the final notification dated 28.10.1971 issued by the State Government in respect of the subject land bearing Sy. No. 79 of Jarakabande Kaval, Yelahanka Hobli, Bangalore North taluk, measuring 4.01 acres have stood lapsed under Section 24(2)(ii) and 25 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short 'the said Act of 2013') have been abandoned and non est and for a direction to the respondents to restore possession of the subject land to the petitioners. Alternatively, petitioners have sought for a direction to pay compensation together with all consequential benefits to the petitioners in accordance with the said Act of 2013. 2. Briefly stated, the contentions urged by the petitioners are that the subject land was purchased by the petitioners and their predecessor in title vide registered sale deed dated 08.01.1964 and the same was converted for industrial purpose on 07.12.1964. On 07.01.1972, the owners filed an application with the CITB seeking permission to form a layout and the same was approved vide CITB Resolution bearing No. 698 dated 12.01.1972, pursuant to which, the predecessors of the petitioners executed an agreement dated 01.03.1972 in favour of the CITB. Accordingly, supervision and layout charges levied by the CITB was paid by them and the CITB sanctioned the layout plan on 08.01.1973. It is contended that the petitioners have acquired right over the subject land as detailed in paragraphs 4 and 5 of the petition. 3. The petitioners contend that though a preliminary notification dated 31.05.1963 was purported to have been issued by the CITB including the subject land, petitioners or the previous owners were not aware of the same till a final notification dated 28.10.1971 was issued showing the name of G.B. Sadashivaiah, father of petitioners 1 to 3 against the subject land. It is contended that the aforesaid Resolution dated 12.01.1972 passed by the CITB, approval and sanction of the layout plan by the CITB, registered agreement dated 01.03.1972 executed between the predecessors of the petitioners and the CITB and other documents indicate that the subject land had been left out/excluded from the acquisition proceedings. It is contended that the aforesaid Resolution dated 12.01.1972 passed by the CITB, approval and sanction of the layout plan by the CITB, registered agreement dated 01.03.1972 executed between the predecessors of the petitioners and the CITB and other documents indicate that the subject land had been left out/excluded from the acquisition proceedings. It is further contended that no further acquisition proceedings pursuant to the impugned preliminary and final notifications have been taken by the respondents and no notice of the same has been passed; so also, the respondents have not passed any award in respect of the subject land. 4. Petitioners contend that when the respondent No. 4-APMC started interfering with their possession and enjoyment of the subject land, petitioners were constrained to institute a suit in O.S. No. 3241/1981 for permanent injunction and other reliefs. In the said suit, the allottees from the 4th respondent-APMC were arrayed as defendants 1 to 15, whilst the APMC, BDA and the State of Karnataka were arrayed as defendants 16, 17 and 18 respectively. In the said suit, the aforesaid defendants who are also the respondents herein specifically contended that pursuant to BDA Resolution, correspondence etc., the BDA had acquired the subject land and taken over possession of the same from the petitioners. It was contended that the BDA handed over possession of the subject land to the APMC who had allotted the same in favour of various persons. It is also contended that on 05.05.1981, the BDA had handed over possession to the 4th respondent APMC and a letter in this regard dated 05.05.1981 was produced. 5. Aggrieved by the aforesaid letter dated 05.05.1981, the petitioners herein preferred W.P. Nos. 22627-628/1982 against the BDA and APMC. It was contended that at the time of preferring this writ petition, the suit in O.S. No. 3241/1981 filed by the petitioners was already pending adjudication before the civil court. By final order dated 30.08.1982, this Court disposed of the said petition noticing that the aforesaid suit was already pending adjudication and that it was open for the petitioners to file a separate suit or seek amendment in the aforesaid suit already filed by them. The said order dated 30.08.1982 passed by the learned Single Judge was confirmed by the Hon'ble Division Bench in W.A. No. 4223/1983 dated 20.04.1983 and also by the Apex Court in SLP Nos. The said order dated 30.08.1982 passed by the learned Single Judge was confirmed by the Hon'ble Division Bench in W.A. No. 4223/1983 dated 20.04.1983 and also by the Apex Court in SLP Nos. 10887-10888/1983 dated 16.07.1984; however liberty was granted in favour of the petitioners to seek amendment by claiming declaration and possession and that the plea of limitation would not be raised as a defence by the respondents. 6. Petitioners have contended that after disposal of the matter by the Apex Court, petitioners got the plaint amended and sought for declaration and other appropriate reliefs. It is averred in the entire proceedings right up to the Apex Court, the respondents had not produced any material to establish passing of an award or payment of compensation before taking over of the possession of the subject land and handing over the same to the 4th respondent - APMC. 7. The aforesaid suit O.S. No. 3241/1981 was dismissed by the trial court vide judgment and decree dated 07.04.2001, aggrieved by which, petitioners preferred R.F.A. No. 1648/2011 before this Court. During the pendency of the appeal, petitioners filed an RTI application seeking copies of the entire land acquisition proceedings including the award in relation to the subject land. In response thereto, the BDA issued an Endorsement enclosing a copy of the register of lands notified and acquired etc., to indicate that the award was passed and possession was taken on 29.01.1973 and that the entire file had been sent to the learned senior counsel in the Supreme Court. 8. By final judgment and decree dated 12.06.2017, this Court disposed of the appeal reserving liberty in favour of the petitioners to file proper application/appeal/petition by leaving open all contentions. The said order passed by this Court had attained finality. . It is contended that in the absence of any material to establish that the respondents had taken possession from the petitioners in accordance with law and that the compensation had been paid or deposited by the respondents, the entire acquisition proceedings are vitiated and stood lapsed under the said Act of 2013. . It is contended that in the absence of any material to establish that the respondents had taken possession from the petitioners in accordance with law and that the compensation had been paid or deposited by the respondents, the entire acquisition proceedings are vitiated and stood lapsed under the said Act of 2013. It is also contended that since no award has been passed, no notice under Section 9 of the L.A. Act 1984 has been issued and in view of the liberty reserved by this Court in R.F.A. No. 1648/2011 referred to supra, there is no delay or latches on the part of the petitioners to approach this Court, particularly when the respondents have illegally taken over possession of the subject lands from the petitioners in violation of Article 300A of the Constitution of India. 9. It is contended that subsequently, petitioners have submitted repeated representations seeking a direction to the respondents to comply with the request made by the petitioners and for payment of compensation and since the respondents have neither replied to the same nor passed an order nor paid any compensation, petitioners are before this Court by way of the present petition. 10. While, the respondents 1 to 3 i.e., the State Government and the BDA have not filed statement of objections, the respondent No. 4 - APMC has filed its statement of objections and produced various documents. The respondents 2 and 3 - BDA have filed a memo along with a copy of the extract of register of lands notified, acquired etc., in relation to the subject land. In this context, it is relevant to state that this extract has not only been produced by the petitioners themselves along with their RTI application and enclosed with I.A. 2/2017 filed by them. The said extract has also been produced as one of the documents along with Annexure-P dated 20.02.2016 in response to the RTI application of the petitioners. 11. In their statement of objections, the 4th respondent - APMC have denied the various contentions and claim put forth by the petitioners and have contended that the petitioners have misconstrued Section 24(2) and 25 of the said Act of 2013. 11. In their statement of objections, the 4th respondent - APMC have denied the various contentions and claim put forth by the petitioners and have contended that the petitioners have misconstrued Section 24(2) and 25 of the said Act of 2013. It is contended that the subject land and other lands were acquired by the CITB which was later on converted as a BDA and the acquisition proceedings culminated in an award and taking of possession by the BDA which handed over possession of the same to the 4th respondent, which was deposited the award amount as insisted by the BDA. It is contended that having regard to the previous round of litigation, the petitioners do not have any locus standi to prefer the present petition nor any right to claim the compensation amount, particularly when all the lands have been developed, shops, go-downs, offices have been constructed and have been allotted in favour of the respective allottees who are running their business. It is contended that the petition is barred by res judicata in view of the earlier round of litigation between the petitioners and the respondents. It is therefore contended that there is no merit in the petition and the same is liable to be dismissed. 12. I have given my anxious consideration to the rival submissions and perused the material on record. 13. The first question that arises for consideration is whether the present petition is barred by res judicata as contended by the respondents. In this context, the details of the previous rounds of litigation as narrated above, do not require repetition. It is however relevant to state that the petitioners having initially asserted their possessory right and enjoyment over the subject land, subsequently, got the plaint in O.S. No. 3241/1981 and sought for declaration and other comprehensive reliefs. Though, the said suit was dismissed by the trial court, in the light of the specific and express liberty reserved in favour of the petitioners, in R.F.A. No. 1648/2011 dated 12.06.2017, wherein, this Court has reserved liberty in favour of the petitioners herein to file proper application/appeal/petition by leaving/keeping open all contentions, it is clear that the issues in controversy in the present petition have not been heard and finally decided in the previous/earlier rounds of litigation and consequently, it cannot be said that the present petition is barred by res judicata. Under these circumstances, the contention of the respondents that the petition is barred by res judicata in view of the previous rounds of litigation, cannot be accepted. 14. Insofar as delay and latches on the part of the petitioners in approaching this Court by way of the present petition is concerned, as stated supra, liberty was reserved by this Court in R.F.A. No. 1648/2011 on 12.06.2017 and the present petition having been filed on 08.08.2017, within a period of two months from that day, cannot be said to suffer from delay or latches and as such, even this contention of the respondents cannot be accepted. 15. A perusal of the material on record including the previous rounds of litigation as well as the documents produced by the petitioners themselves and the documents produced by the 4th respondent will indicate that actual and physical possession of the subject land have been taken over by the BDA which is handed over the same in favour of the 4th respondent - APMC which has in turn, allotted portions in favour of its allottees. Under these circumstances, the question of interfering with the impugned notifications and directing restoration of possession to the petitioners at this length of time would not arise in the peculiar/special facts and circumstances of the instant case. 16. The next question that would however for consideration is, whether the respondents have taken valid and legal possession of the subject land from the petitioners after following due process of law and completing the acquisition proceedings by passing of an award as required in law. In this context, it is relevant to state that though the trial court in O.S. No. 3241/1981 has recorded a finding that the petitioners had not established that an award had not been passed, the said judgment and decree passed by the trial court stood merged and superseded by the judgment and decree passed by this Court in R.F.A. No. 1641/2017 dated 01.06.2017 referred to supra and consequently, the judgment and decree of the trial court cannot be relied upon by the respondents to contend that an award was passed by them. Further, though, the respondents have contended that an award was passed, details of the same and necessary material particulars and documents in relation to the award have not been furnished by the respondents. Further, though, the respondents have contended that an award was passed, details of the same and necessary material particulars and documents in relation to the award have not been furnished by the respondents. So also, absolutely, no material has been placed by the respondent to establish that award in respect of the subject land had been passed by the State Government or the BDA. The only document produced by the respondents i.e., the register of acquired lands is also not sufficient to establish that an award was passed by the respondents. In fact, while the RTI extract of the register produced by the petitioners seems to indicate that the file was handed over the learned senior counsel for the BDA and that an award was passed and possession taken on 29.11.1973, the very same register extract produced by the BDA not only shows that the said Endorsement regarding award being passed and possession being taken on 29.11.1973, has been struck off. At any rate, both the extracts produced by the petitioners and the respondents are mutually discrepant, contradictory and destructive and at variance with each other and consequently, the said extracts produced by the parties, cannot be made the basis to come to the conclusion that an award was passed by the BDA in relation to the subject land. 17. As stated supra, the material on record clearly indicates that the respondents have failed to establish that an award was passed in relation to the subject land and that the respondents have taken possession of the subject land from the petitioners after following due process of law and after completing and concluding the acquisition proceedings in accordance with law. On the other hand, though a final notification dated 28.10.1971, no award has been proved to have been passed pursuant to the same, even till today. In fact, the CITB approval dated 12.01.1972 approving the layout formed by the predecessors of the petitioners, registered agreement dated 01.03.1972 executed between CITB and predecessors of the petitioners, layout plan was sanctioned in their favour dated 08.01.1973 by the CITB and other documents clearly establish that instead of continuing the acquisition proceedings in relation to the subject land, the respondents have not completed or concluded the acquisition proceedings and have recognized the right of the petitioners over the subject land. Under these circumstances, it is clear that the respondents having failed to complete and conclude the acquisition proceedings, and having forcibly and illegally dispossessed the petitioners from the subject lands, the respondents are liable to compensate the petitioners in this regard by taking necessary steps to acquire the subject lands and pay compensation in favour of the petitioners as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, Resettlement Act, 2013 together with all benefits, interest, etc. in accordance with law in terms of the decision of the Apex Court in the case of Vidya Devi vs. State of Himachal Pradesh and others reported in (2020) 2 SCC 569 . 18. In view of the aforesaid facts and circumstances, I am of the view that the present petition deserves to be partly allowed by directing the respondents to initiate appropriate proceedings under the said Act of 2013 and pay compensation together with all benefits, interest, etc. as stated supra in favour of the petitioners within a stipulated timeframe. 19. In the result I pass the following:- ORDER (i) Petition is hereby partly allowed. (ii) Respondents are directed to initiate acquisition proceedings under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, Resettlement Act, 2013 and pay compensation together with all benefits, interest, etc. in favour of the petitioners in relation to the subject land bearing Sy. No. 79 of Jarakabande kaval, Yelahanka Hobli, Bangalore North taluk, measuring 4.01 acres within a period of six months from the date of receipt of a copy of this order.