2004 Supreme(Kar) 646

Karnataka High Court
D.Narayanappa - Appellant
Versus
State of Karnataka - Respondent
Decided On : 11-20-04
Writ Petition : 3317 of 2004

Headnote:BANGALORE DEVELOPMENT (ALLOTMENT OF SITES) RULES, 1984 - Purchase by or allotment of sites to members of same family - Rules 5 & 10 - Purchase by or allotment of sites to members of same family -Neither a BDA site can be purchased nor be allotted more than once to members of the same family. [V. Gopala Gowda, J]: Having regard to the object and intendment of the BDA Act under both 1982-1984 Rules purchase of two sites by members of the same family (husband and wife) is impermissible in law. When allotment is restricted for a single site to a family, members of the same family cannot be permitted to purchase any number of sites in the name of a single member or in the name of other members of the family merely because they are wealthy to enrich themselves. If the houses in which they are residing belong to them, their position will be much worse as, a person owning a site or house cannot acquire another property from the BDA either by way of allotment or purchase in the public auction. They may purchase private sites or houses but not BDA sites or houses.

       Cases Referred: ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603. Followed:ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       BANGALORE DEVELOPMENT (ALLOTMENT OF SITES) RULES, 1984 - Taking possession of land - Rule 3 -Taking possession of land - BDA claiming to have taken possession of land -When , how not stated -When the structures came up -Not stated -Why structures came up if possession is taken? Hence, petitioners were in possession as owners or have acquired statutory right by being in the settled possession.

       Cases Referred: ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603. Followed:ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Approval for formation of sites - Section 3 -Approval for formation of sites -Modification of original scheme -Procedure to be followed -Stated -If not followed there cannot be approval -Without such approval formation of sites on the land purported to be taken into possession by BDA and their auction is without authority of law. [V. Gopala Gowda, J]: The original lay-out plan produced by the BDA was approved by the Authority/Board vide Resolution No. 184 dated 14-4-1976. Any modification to the same will have to be done only with the approval by way of Resolution of the BDA which is established under Section 3 of the BDA Act. The plan indicates incorporation of some other sites as per the resolutions of the Authority. Some more sites have been incorporated in the master layout plan on the orders of the Commissioner dated 27-12-1999 and 17-5-2002. In respect of the sites formed on the land in question after demolishing the structures situated upon the property in question on 14-8-2003, there is no resolution of the Authority or order of the Commissioner in this regard, Thus, there is no approval of either the Authority or the Commissioner for the formation of sites on the land in question.

       Cases Referred: ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603. Followed:ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Jurisdiction of BDA - Section 27 - Jurisdiction of Bangalore Development Authority -Scheme floated by CITB -Land acquired by it -Scheme substantially implemented except for the land of the petitioners -Layout plan approved by Bangalore Development Authority beyond time stipulated -Possession also was taken after twelve years -Hence, scheme has lapsed -In other words, BDA, the successor of CITB cannot implement the scheme. [V. Gopala Gowda, J]: The BDA has abandoned its scheme in so far as the land in question for the reason that it has not formed sites upon the land in question as is evident from the Master Layout plan produced by the BDA. Consequently, the successor BDA had no jurisdiction to execute or implement the lapsed and abandoned scheme. Therefore the legal consequence is that the officers of BDA should not have exercised their power over the land in question under the provisions of the BDA Act and Rules for demolishing the existing structures and formed the sites upon the property and sold the same in the public auction.

       Cases Referred: ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603. Followed:ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       CITY OF BANGALORE IMPROVEMENT ACT, 1945 - Section 19 - Lapse of scheme - Section 19 -Lapse of scheme -Land acquired by CITB and possession of land taken -But, not utilised for several years i.e, till the time prescribed under the Act - Held, acquisition proceedings lapsed. [V. Gopala Gowda, J]: Under Section 19 of the 1945 Act and under Section 27 of BDA Act the scheme would lapse if it is not implemented substantially within the specified period. But, what should happen to the lands acquired by the erstwhile CITB for the scheme and not utilized for several years despite the scheme is substantially executed in respect of the other lands? If the acquired lands are not utilized for the purpose for which they were acquired within a reasonable period (for example within a period of 10 years from the date of final notification), it shall be held that such lands are not required for the purpose for which they were acquired and the same are abandoned. In such cases, it has to be held that the acquisition proceedings automatically lapsed on account of abandonment of the same for decades and the original owners of such lands can exercise full ownership rights upon such lands.

       Cases Referred: ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603. Followed:ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       Land Acquisition Act, 1894 - Taking possession of land - Taking possession of land - BDA claiming to have taken possession of land -When , how not stated -When the structures came up -Not stated -Why structures came up if possession is taken? Hence, petitioners were in possession as owners or have acquired statutory right by being in the settled possession. See, Bangalore Development Authority Act, 1976 - Section 38.

       Cases Referred: ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603. Followed:ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       Approval for formation of sites

       BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Section 3 -Approval for formation of sites -Modification of original scheme -Procedure to be followed -Stated -If not followed there cannot be approval -Without such approval formation of sites on the land purported to be taken into possession by BDA and their auction is without authority of law.

       [V. Gopala Gowda, J]: The original lay-out plan produced by the BDA was approved by the Authority/Board vide Resolution No. 184 dated 14-4-1976. Any modification to the same will have to be done only with the approval by way of Resolution of the BDA which is established under Section 3 of the BDA Act. The plan indicates incorporation of some other sites as per the resolutions of the Authority. Some more sites have been incorporated in the master layout plan on the orders of the Commissioner dated 27-12-1999 and 17-5-2002. In respect of the sites formed on the land in question after demolishing the structures situated upon the property in question on 14-8-2003, there is no resolution of the Authority or order of the Commissioner in this regard, Thus, there is no approval of either the Authority or the Commissioner for the formation of sites on the land in question.

       Cases Referred:

       Referred: ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603.

       Followed: ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       Jurisdiction of BDA

       BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Section 27 - Jurisdiction of Bangalore Development Authority -Scheme floated by CITB -Land acquired by it -Scheme substantially implemented except for the land of the petitioners -Layout plan approved by Bangalore Development Authority beyond time stipulated -Possession also was taken after twelve years -Hence, scheme has lapsed -In other words, BDA, the successor of CITB cannot implement the scheme.

       [V. Gopala Gowda, J]: The BDA has abandoned its scheme in so far as the land in question for the reason that it has not formed sites upon the land in question as is evident from the Master Layout plan produced by the BDA. Consequently, the successor BDA had no jurisdiction to execute or implement the lapsed and abandoned scheme. Therefore the legal consequence is that the officers of BDA should not have exercised their power over the land in question under the provisions of the BDA Act and Rules for demolishing the existing structures and formed the sites upon the property and sold the same in the public auction.

       Cases Referred: ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603;

       Followed: I.L.R 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097 ; AIR 1968 SC 1413; AIR 1999 SC 1281.

       Possession

       BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Section 38 - Possession - BDA claiming to have taken possession of land -When , how not stated -When the structures came up -Not stated -Why structures came up if possession is taken? Hence, petitioners were in possession as owners or have acquired statutory right by being in the settled possession.

       [V. Gopala Gowda, J]: In the surrounding areas of the land in question, sites have been formed and numbers are assigned and allotted in favour of different persons. In respect of this portion of the land, neither sites are formed nor any numbers are assigned in the master layout plan. From this, undisputed fact noticed from the layout plan of the BDA it can be conveniently held that the BDA did not take actual possession of the land from the petitioner on account of the fact that he has been in possession and structures were in existence upon the property in question. That is the reason for leaving the land in question blank in the Master lay-out plan, which is produced by the BDA. Under these circumstances, it cannot be said that BDA took possession of the land in question on 28-12-1976 as asserted by it as mentioned in the notification. The notification issued under section 16(2) dt.16-6-1977 cannot be accepted by this Court, as it only shows taking over of symbolic possession and actual possession of the land was not taken from the petitioner by the government by following the mandatory procedure as held by the Apex Court in the case of BALWANT NARAYAN [AIR 1975 SC 1769] referred to, Therefore the claim so made by the BDA regarding taking possession of the land in question is wholly untenable and unacceptable to this court, Therefore, it can be safely said that the notification issued under Section 16(2) of the L.A. Act to show that the possession of the land was taken is factually incorrect.

       Taking possession of land

       BANGALORE DEVELOPMENT (ALLOTMENT OF SITES) RULES, 1984 - Rule 3 -Taking possession of land - BDA claiming to have taken possession of land -When , how not stated -When the structures came up -Not stated -Why structures came up if possession is taken? Hence, petitioners were in possession as owners or have acquired statutory right by being in the settled possession.

       Cases Referred: ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603.

       Followed:ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       Purchase by or allotment of sites to members of same family

       BANGALORE DEVELOPMENT (ALLOTMENT OF SITES) RULES, 1984 - Rules 5 & 10 - Purchase by or allotment of sites to members of same family -Neither a BDA site can be purchased nor be allotted more than once to members of the same family.

       [V. Gopala Gowda, J]: Having regard to the object and intendment of the BDA Act under both 1982-1984 Rules purchase of two sites by members of the same family (husband and wife) is impermissible in law. When allotment is restricted for a single site to a family, members of the same family cannot be permitted to purchase any number of sites in the name of a single member or in the name of other members of the family merely because they are wealthy to enrich themselves. If the houses in which they are residing belong to them, their position will be much worse as, a person owning a site or house cannot acquire another property from the BDA either by way of allotment or purchase in the public auction. They may purchase private sites or houses but not BDA sites or houses.

       Auction of sites

       BANGALORE DEVELOPMENT AUTHORITY (DISPOSAL OF CORNER AND COMMERCIAL SITES) RULES, 1984 - Rule 6 -Auction of sites -Procedure to be followed -Compliance of requirement of sub-rules (3) and (6) are mandatory.

       [V. Gopala Gowda, J]: The public auction of sites was conducted on 23-8-2003. When the confirmation of the sale in the Form-1 prescribed under Rule 6(3) of BDA sale of (Corner and Commercial sites) 1984 Rules was made and communicated to the auction purchasers and when the remaining seventy five percent of sale consideration amount was paid by the Auction purchasers to the BDA is not stated either in the statement of counter filed by the BDA or auction purchasers. Whether agreements in Form-U as prescribed under Rule 6(6) of the Rules are executed or not, neither the BDA nor the purchasers of sites have stated in their statement of objections, Even in the Sale Deeds executed in favour of the auction purchasers by the BDA, the above relevant Facts are not stated. Therefore, it has to be held that the sale deeds executed in favour of purchasers of the sites are bad in law for non- compliance of the mandatory requirement of the rule 6 of Subrule (3) and (6) of the above Rules.

       Cases Referred: ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603; Followed:ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       Lapse of scheme

       CITY OF BANGALORE IMPROVEMENT ACT, 1945 - Section 19 -Lapse of scheme -Land acquired by CITB and possession of land taken -But, not utilised for several years i.e, till the time prescribed under the Act - Held, acquisition proceedings lapsed.

       [V. Gopala Gowda, J]: Under Section 19 of the 1945 Act and under Section 27 of BDA Act the scheme would lapse if it is not implemented substantially within the specified period. But, what should happen to the lands acquired by the erstwhile CITB for the scheme and not utilized for several years despite the scheme is substantially executed in respect of the other lands? If the acquired lands are not utilized for the purpose for which they were acquired within a reasonable period (for example within a period of 10 years from the date of final notification), it shall be held that such lands are not required for the purpose for which they were acquired and the same are abandoned. In such cases, it has to be held that the acquisition proceedings automatically lapsed on account of abandonment of the same for decades and the original owners of such lands can exercise full ownership rights upon such lands.

       Cases Referred: ILR 1990 Kar 3320; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603 ;

       Followed: ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       Constitution of India -Maintainability of writ -Article 226 -Maintainability of writ -BDA produced Master Layout Plan -Land of petitioners over which possession is claimed to have been taken by BDA, was not shown in it -Structures remaining on the land -When they came up, when and how possession was taken, not stated by BDA -Hence, petitioners were in possession as owners -They are aggrieved persons -Their petitions are maintainable. [V. Gopala Gowda, J]: Petitioner has been in possession either as true owner or in the alternative in settled possession of the land, and has acquired statutory right over it. Consequently, he is an "aggrieved person" to question the arbitrary, illegal, unlawful and forcible action of the officers of BDA and hence this petition against the respondents is maintainable.

       Cases Referred: ILR 1990 Kar 3320 ; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603.

       Followed: ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       Maintainability of writ

       CONSTITUTION OF INDIA - Article 226 -Maintainability of writ -BDA produced Master Layout Plan -Land of petitioners over which possession is claimed to have been taken by BDA, was not shown in it -Structures remaining on the land -When they came up, when and how possession was taken, not stated by BDA -Hence, petitioners were in possession as owners -They are aggrieved persons -Their petitions are maintainable.

       [V. Gopala Gowda, J]: Petitioner has been in possession either as true owner or in the alternative in settled possession of the land, and has acquired statutory right over it. Consequently, he is an "aggrieved person" to question the arbitrary, illegal, unlawful and forcible action of the officers of BDA and hence this petition against the respondents is maintainable.

       Cases Referred: ILR 1990 Kar 3320 ; AIR 1991 SC 1153; 1976(1) SCC 671; ILR 1977 SC 603.

       Followed: ILR 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097; AIR 1968 SC 1413; AIR 1999 SC 1281.

       Taking possession of land

       LAND ACQUISITION ACT, 1894 - Taking possession of land - BDA claiming to have taken possession of land -When , how not stated -When the structures came up -Not stated -Why structures came up if possession is taken? Hence, petitioners were in possession as owners or have acquired statutory right by being in the settled possession. See, Bangalore Development Authority Act, 1976 - Section 38.

       Cases Referred:

       ILR 1990 Kar 3320 ; AIR 1991 SC 1153; 1976(1) SCC 671 ; ILR 1977 SC 603;

       Followed:I.L.R 2000 Kar 4134; AIR 1975 SC 1769; AIR 1924 PC 144; AIR 1989 SC 2097 ; AIR 1968 SC 1413 ; AIR 1999 SC 1281.