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2023 DIGILAW 85 (KAR)

Badamma v. State of Karnataka

2023-01-13

KRISHNA S.DIXIT

body2023
JUDGMENT/ORDER 1. Petitioners are knocking at the doors of Writ Court for assailing the acquisition proceedings of the lands in question on several grounds. 2. Learned Sr. Advocate appearing for the Petitioners argues that it has been a settled position of law that if the statutory sanction has not been obtained at the hands of the Government under Sec. 18(3) of the Bangalore Development Authority Act, 1976, the acquisition proceedings cannot be sustained; that on the very same ground, relief has been granted to other land owners by a Coordinate Bench of this Court in W.P.Nos.16827-16834/1994 etc., between YELLAPPA & OTHERS vs. STATE & OTHERS, disposed off on 7/10/1996; if the Scheme has not been implemented within the statutory period, the acquisition would lapse and land should revert to it's owners; the acquisition in question is not in public interest; the BDA has recommended for denotification. 3. After service of notice, the State has entered appearance through the learned AGA; the BDA is represented by its learned Panel Advocate; the Housing Society is represented by its own learned counsel. Both the BDA & the Society have filed their Statements of Objections resisting the Writ Petition. Both the learned AGA and the BDA Panel Counsel oppose the Petition making submission in justification of the acquisition. They plead about delay & laches in the filing of Petition. They controvert Petitioners' submissions and seek dismissal of Petition. 4. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court is inclined to grant indulgence in the matter for the following reasons: A) AS TO DELAY and LACHES: (i) The proceedings for acquisition commenced vide Preliminary Notification dtd. 19/1/1989 issued under Ss. 17(1) and (3) of the 1976 Act; the Final Notification was issued under Sec. 19(1) on 19/1/1994. The Government granted the so called 'sanction' on 10/8/1989 which is held to be no sanction by the Coordinate Bench in YELLAPPA case, supra. Once the proceedings are a nullity, ordinarily, there is no limitation for laying a challenge to the same; the question of laches also does not much arise since admittedly, no development has taken place in the subject land which is said to be in the encroachment of the Respondent - Society. A truncated mahazar has been drawn with the signatures of a few villagers without mentioning their material particulars. A truncated mahazar has been drawn with the signatures of a few villagers without mentioning their material particulars. Admittedly, the Petitioners have not received the compensation although the BDA has deposited the same in the court. After such a deposit, whether any notice was issued to the Petitioners is also not forthcoming from the records. (ii) It is stated at the Bar that the subject land has been in the encroachment of the Respondent - Housing Society and that the BDA has lodged a Police complaint in that regard, the subject acquisition having not been made for the benefit of the said Society. The BDA has written to the Government for the dropping of acquisition stating that this land is not required for the formation of layout in question. Admittedly, no layout has been formed nor any third party interest is created in respect of the land. Therefore, the Petitioners are more than justified in contending that delay and laches be condoned and the land be restored to them. (iii) The vehement submission of learned Panel Counsel for the BDA that the challenge to the acquisition is highly belated, does not merit acceptance for other reasons too: firstly, the Right to Property is constitutionally guaranteed to the citizens under Article 300A. The statutory sanction is held to be no sanction by a Coordinate Bench in respect of notified lands belonging to others, infra. The Apex Court in SUKH DUTT RATRA and ANOTHER VS. STATE OF HP and OTHERS (2022) 7 SCC 508 at paragraph 17 and 18 has observed as under: "When seen holistically, it is apparent that the State's actions, or lack thereof, have in fact compounded the injustice meted out to the appellants and compel them to approach this Court, albeit belatedly... There is a walter of precedents on delay and laches which conclude either way - as contended by both sides in the present dispute - however, the specific factual matrix compels this Court to weigh in favour of the appellant land owners. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a "limitation" to doing justice...." These observations come to the aid of Petitioners in the fact matrix of the case. B) AS TO ABSENCE OF STATUTORY SANCTION: (i) The submission of Mr. Ashok Haranahalli learned Sr. The State cannot shield itself behind the ground of delay and laches in such a situation; there cannot be a "limitation" to doing justice...." These observations come to the aid of Petitioners in the fact matrix of the case. B) AS TO ABSENCE OF STATUTORY SANCTION: (i) The submission of Mr. Ashok Haranahalli learned Sr. Advocate appearing for the Petitioners that the sanction of the Government as required under Sec. 18(3) of the 1976 Act is a sine qua non for the issuance of a Final Notification under Sec. 19(1), is supported by a Coordinate Bench decision in YELLAPPA'S Case, supra. It is pertinent to mention that the said litigants were the owners of adjoining lands notified in the very same acquisition for the very same Project. The Coordinate Bench at para 5 of its judgment has observed as under: " ...The order dtd. 10/3/1989 referred to in the Final Notification is an order issued much earlier to filing of Objections by the land owners pursuant to the notices under Sec. 17(5) of the Act. It is clear from reading of Sec. 18 that after considering the Objections, if any, BDA has to submit its Report and other particulars for the purpose of sanction under Sec. 18(3) of the Act.... The above facts clearly show that the order referred to in the Notification issued under Sec. 19 of the Act is much earlier to the date of Objections and therefore, it cannot said to be a sanction under Sec. 18(3) of the Act...." Having so observed, the Court quashed the Final Notification so far as the litigants in the case were concerned, reserving liberty to proceed with the acquisition, in accordance with law. Subsequently, the Final Notification has been issued, is true. However, that does not cover Petitioners' lands. (ii) The vehement contention of learned AGA and the BDA counsel that the Petitioners cannot seek refuge under the judgment of a Coordinate Bench since the relief was confined to the litigants therein, is bit difficult to countenance. The reasons for this are obvious: firstly, the acquisition was under the very same Notifications and for the very same Housing Project namely Gnanabharathi Layout; if a constitutional court after perusal of the original records has recorded a finding that the Government Order dtd. The reasons for this are obvious: firstly, the acquisition was under the very same Notifications and for the very same Housing Project namely Gnanabharathi Layout; if a constitutional court after perusal of the original records has recorded a finding that the Government Order dtd. 10/8/1989 could not be construed as the sanction under Sec. 18(3) of the 1976 Act, it is unconscionable on the part of the respondent-Government and BDA to contend to the contrary qua other land owners. In matters like this, invocation of res judicata would not much help to exclude the benefit of a finding to the similarly circumstanced persons on the ground that they were not parties to the proceeding in which such a finding is recorded, especially when it has overtones of law. When in a given set of facts, relief has been granted to some land owners, denying the same to others, strikes at the root of reason, justice and fairness, with which ordinarily, the Constitutional Courts do operate. (iii) Mr. Haranahalli is more than justified in arguing that the Final Notification issued sans sanction of the Government under Sec. 18(3) of the 1976 Act and all subsequent proceedings following the same are absolutely without jurisdiction and therefore, a nullity, the requirement of sanction being a sine qua non. It is also supported by the decision of the Coordinate Bench in YELLAPPA Case supra. C) AS TO BDA RECOMMENDING FOR GIVING UP THE LANDS: The BDA itself has suggested to the Government that the said lands are no longer required and therefore, be dropped from acquisition process. Mr. Haranahalli is right in drawing attention of the Court to the instruction of the then Chief Minister to the BDA Commissioner to drop the acquisition proceedings as is reflected in the "anoupachaarika tippani" dtd. 17/1/2014, a copy whereof avails at Annexure - R4(7) to the Statement of Objections filed by the respondent- Society. It also specifically mentions: that no layout has been formed in this land; several unauthorized RCC structures have been erected therein long back; several persons have put up construction after obtaining Katha and Building Licenses at the hands of BBMP; these structures have been given power and water supply and provided with sanitary facilities. If that be so, there is no justification for the BDA or the Government in opposing the Writ Petition. If that be so, there is no justification for the BDA or the Government in opposing the Writ Petition. An argument to the contrary cannot be sustained, the opponents being the State entities who should conduct themselves as model litigants consistent with constitutional aspirations. D) AS TO NON-EXECUTION OF THE SCHEME WITHIN THE STATUTORY PERIOD: It is submitted on behalf of the Petitioners that the statutory scheme in question has not been substantially accomplished within the prescribed period and therefore, the same lapses by operation of law. Whether the scheme has been substantially executed is a matter exclusively lying within the knowledge of the BDA. No evidentiary material is produced by the Respondent - BDA to prima facie show that the Scheme has been substantially executed. The Statement of Objections filed by the erstwhile Panel Counsel of the BDA militantly lacks in material particulars. No Objections have been filed by the State to the Writ Petition. In the absence of contra pleadings, the vehement submissions of learned AGA and the BDA Counsel would not come to the rescue of their clients. In the above circumstances, this Writ Petition succeeds; a Writ of Certiorari issues quashing the acquisition proceedings at and from the stage of Final Notification that culminated into the Award dtd. 1/4/1997, to the extent the same relate to the Petition lands. Liberty is reserved to the State and the BDA to proceed with the Preliminary Notification dtd. 19/1/1989 at Annexure - J, should they so desire. Costs made easy.