The Commissioner, Bangalore Development Authority vs Addi Housing Industries Limited

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2008 Supreme(Kar) 161

2008 (3) KLO 2066 (DB)
IN THE HIGH COURT OF KARNATAKA
Chidananda Ullal and H.N. Nagamohan Das, JJ.
Regular First Appeal Nos. 312, 339, 340, 341, and 342 of 2005,
RFA No. 312 of 2005
The Commissioner, Bangalore Development Authority – Appellant
Vs.
M/s. Addi Housing Industries Limited and Others – Respondents
Decided on 5-3-2008

Advocates:
Advocate appearing for:
Appellant: Sri Nanjunda Reddy, Senior Counsel for Smt. Mala N.D. Adv.
Respondents:Sri G.V. Shantharaju, Senior Counsel, for M/s. Kesvy and Co., Advocate for Respondents -1 and 2 Sri Ashok Haranahalli, Adv.

Headnote:(A) Land Acquisition Act, 1894-Sections 4(1) and 6(1)-Land acquisition-Effect of-Position of trespasser who is in settle possession.
       Held: i) Once the land stood divested from the owner and vested with the acquiring authority, no one can lay any claim to the acquired land.
       (ii) A person who purchases the land subsequent to the issuance of notification will not get any title to the land.
       (iii) A trespasser is not entitled for injunction against true owner,
       (iv) A trespasser in settled possession of the acquired land is entitled to defend his possession eve against true owner unless he is evicted by due process of law.
       (v) Settled possession means, a trespasser’s possession must be effective, undistributed and to the knowledge of the true owner and for a sufficiently long period to show acquiescence by the true owner.
       (vi) What is sufficient long period depends upon the facts of each case. (Para 15)
       (B) Bangalore Development Authority Act, 1976—Sections 16(2), 17(1) (3) and 19(1)—Vesting of acquired land—Assurance of notice for acquisition, issuance of final notification, passing of award and taking of possession of land under mahazar—Effaflish the fact of vesting of land with the authority.
       (C) Transfer of property Act, 1882—Section 54—Possession of transferee—Legality of—Acquisition of land—Subsequent sale of—Sale deed is illegal—Possession thereunder—Not lawful.
       (D) Possession—Trespasser in settled possession of acquired land is entitled to defend his possession even against true owner unless he is evicted by due process of law.
       (E) Words and Phrases—Settled possession—Means, a trespasser’s possession must be effective, undisturbed and to the knowledge of the true owner and for a sufficiently long period to show acquiescence by the true owner. The concept of settled possession is not transferable for consideration by one person to another. Therefore the plaintiffs are not in settled possession of schedule land.
       Result: Appeal allowed.

Judgment

Nagamohan Das, J.

These appeals are directed against the common Judgment and Decree dated 30.11.2004 in O.S. No.1703/03 to 1707/2003 passed by the City Civil Judge, Bangalore City partly decreeing the suits granting decree of permanent injunction.

2. The Appellant in these appeals was the defendant and the respondents were the plaintiffs before the Trial Court. In this Judgment the parties are referred to their status before the Trial Court.

3. As we see the subject matter in these appeals is 3 Acres 36 guntas in Sy.No.10/3 of Gangenahalli (hereinafter for the sake of convenience called as ‘Schedule land’). As on 8.12.1977 the notified khatedars of the schedule land were Smt. Byakka, Jarakamma, M.N. Ramaswamy, S.V. Indiramma, K. Kamaraj, Honnamma and G.P. Padmavathamma. On 16.3.1976 the defendants issued a notification under Section 17(1) and (3) of the Bangalore Development Authority Act, 1976 (for short called as ‘BDA Act’) for acquisition of certain lands including the schedule land for formation of layout called Matadahalli Layout.

4. On 30.11.1977 a final notification under Section 19(1) of the BDA Act was issued, on 16.9.1978 an award came to be passed and the award amount was sent to the Civil Court due to rival claims made in respect of the schedule land. On 25.1.1980 the defendants took possession of the schedule land on 8.3.1988 a notification under Section 16(2) was issued notifying the fact of taking over the possession of schedule land along with other lands.

5. When the matter stood thus, the defendants by their resolution dated 30.7.1988 bearing No.1101 admitted that Smt. Laxmamma, D/o Byakka, one of Khatedars, continued to be in possession to an extent of 2 Acres 34 Guntas out of 3 acres 36 guntas of schedule land and that the defendants could not take possession of this land in view of the fact that certain litigations relating to acquisition proceedings were pending in the High Court. Further in the said resolution the defendants resolved to make bulk allotment of the schedule land in favour of M/s. Kamal Builders and Developers under Group Housing Scheme for construction of apartments. Subsequently the defendants by their resolution dated 3.8.1989 bearing No.1619 rescinded its earlier resolution dated 30.7.1988 making bulk allotment on the ground that the High Court of Karnataka in its order in W.P. No.12119/98 held that defendant-BDA has no power to make bulk allotment of acquired lands.

6. Thereafter the Kathedar, Smt. Lakshmamma sold the lands in her possession in favour of first plaintiff M/s. Addi Housing Industries Limited under seven registered sale deeds on different dates during the period from 27.5.1992 to 18.6.1992. The first plaintiff on the strength of the sale deeds in its favour filed civil suits in O.S. No.1235/1994, 1236/1994, 1238/1994, 1565/1994 and 4135/1994 against the defendants for decree of permanent injunction restraining them from interfering with the first plaintiff’s possession and enjoyment of the sites formed in the schedule land. The suit filed by the plaintiff bearing O.S. No.1238/1994 came to be dismissed for non-prosecution whereas suits in O.S. No.4135/1994, 1565/1994 and 1236/1994 came to be dismissed as withdraw and further the suit in O.S. No.1235/1994 came to be dismissed on contest by a considered judgment. In the meantime, the first plaintiff under five agreements of sale, sold portions of the suit land in question in favour of plaintiff No.2 in each of the suits in question. The plaintiff No.2 in each of the suit filed separate writ petitions in W.P.16712-13/2000 and W.P.No.16473-45/2000 on the file of this Court against the defendant-BDA for a direction to regularise the sites in their possession under Section 38 of the BDA Act and the same came to be dismissed vide order dated 18.8.2000. Thereafter on 14.2.2003, BDA demolished the structures put up by plaintiff No.2 in each of the suit sties. Consequently, the plaintiffs have filed the present suits for

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