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2007 Supreme(Kar) 56
2007(5) Kar. L.J. 200
AJIT J. GUNJAL, J.
Smt. SHARADAMMA AND OTHERS -Appellant
versus
STATE OF KARNATAKA AND OTHERS -Respondent
Writ Petition No. 12086 of 2006
Decided on :24th January, 2007
Advocate Appeared
Sri Vijayashankar, Senior Counsel for Sri Y.R. Sadashiva Reddy, Advocate for Petitioners;
Sri R. Sridhar Hiremath, Additional Government Advocate for Respondent-1;
Sri S.V. Angadi, Advocate for Respondent-2;
Sri K.G. Raghavan, Advocate for Respondent-3.
Headnote:Bangalore Development Authority Act, 1972 - Section 27 - Execution of scheme - Bulk allotment for housing - Implementation of scheme - Beneficiary substantially putting scheme is execution - Constructions made - Scheme would not lapse.
Cases Referred: ILR 1996 KAR 642; ILR 1996 KAR 1258; (1994) 1 SCC 1; 1998 (4) SCC 387; ILR 1998 KAR 2479; AIR 1984 SC 1020.
Orders passed under
CONSTITUTION OF INDIA - Article 162 - Orders passed under - Orders passed under the Article cannot take away a statutory right.
[ V. Gopala Gowda, J]: Every resident of the grama panchayat area, whose name is enlisted in the voters list has got statutory right to contest in the elections of the grama panchayat . Such a right cannot be taken away by the executive orders passed by the State Government under Article 162 of the Constitution of India. The executive orders shall not take away the statutory right of the citizens in the matter of Elections that are conducted to the grama panchayat.
Bangalore Development Authority Act, 1972 - Section 38B(iv) - Bulk allotment - Made prior to insertion of this provision - Provision retrospective - No need of prior approval of Government. [Ajit Gunjal, J]: Apparently, the insertion of Section 38-B has been given retrospective effect inasmuch as it is deemed to have been on the statute from 20th December 1975. The lease-cum-sale to the extent of 30 and odd acres was executed in favour of Respondent No.3 by Respondent No.2 on 13.01.1983. Annexure-RS is a document which would disclose that the possession of the land in question was handed over to the third respondent on 22.01.1983. The claim of the petitioners that they continue to be still in possession of the lands in question cannot be accepted in view of Annexure-R5. In the lease cum-sale executed by respondent No.2 in favour of respondent No.3, schedule would disclose that Sy.Nos.12 and 14 of Thavarekre, Bangalore South Taluk. measuring 30 acres to the extent of 1 ,21,407 sq mtrs has been handed over. Possession certificate would also disclose that an extent of 30 acres has been handed over. What is relevant is Annexure-R5B produced by Respondent No.2. Annexure.. R5B is a statement of lands allotted to respondent No.3 Society in Sy.Nos.12 and 14 of Thavarekere village out of the BTM scheme. The lands in question are Sy.Nos.14/6B and 12/5B. Apparently, under Annexure-R5, the area from Sy,Nos.14/6Ato 14/6Z and 12/5B has been handed over to the third respondent. This would conclusively prove that even before Section 38-B of the Act was put on statute book, an extent of 30 acres was granted in favour of Respondent No.3. Section 5 of the Amending Act would clearly disclose that it is with retrospective effect, which would necessarily mean that the said provision is on statute from 20.12.1975. In the circumstances, the allotment in favour of Respondent No.3 is deemed to have been validated. Consequently, the said contention that in the absence of any prior approval of the State Government the bulk allotment could not have been done, cannot be accepted.
Public purpose
BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Public purpose - Large extent of land deleted from acquisition - Adjacent lands not proposed - Speaks volumes about public purpose - Amounts to helping affordable persons in not acquiring their lands - Land acquired in the guise of providing residential sites to the needy makes the owners landless - There is no public purpose considering the way Bangalore Development Authority and Government have acted.
[V. Gopala Gowda, J]: Deletion of large extent of lands from the acquisition and un-acquisition of lands adjacent to lands proposed for acquisition speaks volumes about the "public purpose". When there is total non-application of mind both by the BDA and the Government to the factual aspects, they cannot claim that the project is for "public purpose". The alleged public purpose is exhibited by the action of the then Chief Minister in according approval by himself without placing the matter for sanction of the Cabinet and thereafter obtaining post-facto sanction of the Cabinet after elections were held by the Election Commission. Rightly the petitioners have raised their voice form on-acquisition of other lands Within the vicinity. Thus, in the guise of allotting sites to the needy persons, by the impugned action the BDA and Government make the land owners landless and indirectly help the affordable class of persons without acquiring their lands.
The earlier proceedings prior to filing of this writ petition had a chequered career. The facts germane for the disposal of this writ petition can be succinctly stated as follows.-
The petitioners claim that they are the owners of the lands in question, i.e., Sy. No. 14/6B measuring 37 guntas and Sy. No. 12/5B measuring 23 guntas of Thavarekere Village which according to them was of the ownership of one late S.K Venkateshappa. According to the petitioners, at the time of issuance of preliminary notification for acquisition, the name of late S.K. Venkateshappa, husband of first petitioner was shown as registered kathedar. After the acquisition, the lands- vested with the Bangalore Development Authority (for short, 'the Authority') and the same was allotted by them to the third respondent-Society along with certain other lands.
2. The undisputed facts are that the lands in question along with some other lands was notified for acquisition for a public purpose, for formation of Byrasandra Thavarekere Madivala (BTM) Layout (for short, 'BTM Layout') pursuant to preliminary notification dated 19-9-1977. The said notifications were issued under sub-section (1) of Section 17 of the Bangalore Development Authority Act, 1976 (for short, 'the Act'). Suffice it to say that notices of the acquisition were served on the original kathedar, i.e., S.K Venkateshappa. Objections were invited, filed and rejected and a final notification was issued. It is not in dispute that an award was passed on 13-10-1981 in respect of Sy. No.12/5B. The notice of the said award was duly served on S.K Venkateshappa, the original kathedar. But however, he did not file any objections, nor did he seek a reference, seeking enhancement. Incidentally it is to be noticed that no Malkies or structures were found in the lands in question, when the Special Land Acquisition Officer inspected on 29-11-1979. Suffice it to say that the possession of the land was taken on 11-12-1981. Mahazir was also drawn. A notification under Section 16(2) of the Land Acquisition Act, 1894 (for short, 'the I.A Act') was issued on 19-4-1982 and possession of Sy. No. 12/5B was taken on 11-12-1981. Sy. No. 14/6B did not substantially stand on a different footing and an award was passed on 26-3-1980. The notice of the said award was served on the original Kathedar S.K Venkateshappa on 15-11-1978- but he did not lodge any claim for enhancement. Incidentally there were no structures or malkies on the lands in question and the possession was taken on 26-7-1989. Notification under Section 16(2) of the LA Act was issued on 4-2-1982. Possession was taken and handed over to the concerned department of the authority.
3. The petitioners notwithstanding these proceedings and the award notice having been served on the original kathedar, questioned the acquisition proceedings in W.P. No. 12195 of 1990. The petitioners obtained an interim order of dispossession. But however, on an application made by the authority bringing it to the notice of the Court that an interim order is obtained by suppression of material facts, the interim order granted was vacated by the learned Single Judge observing thus:
"In view of the statement of objections of respondent 2 stating that the notice under Section 17(5) was served on the kathedar and as a matter of fact objections were filed by the Kathedar/L.Rs of the Kathedar in view of the issuance of subsequent notices under Sections 9, 10 and 11 of the Bangalore Development Authority Act and also taking into consideration that the Kathedar/L.Rs of Kathedar have subsequently appeared in the Civil Court in LAC No. 126 of 1992 seeking compensation, I.A. No. IV for vacating stay by second respondent is allowed, stay vacated".
4. The petitioners filed an application I.A. No. VI for recalling the said order but however, it was observed thus:
"Since the order dated 15-3-1993 has been passed after hearing both the sides, I.A. No. VI for recalling the order dated 15-3-1993 is rejected".
