H. A. BALAJI, S/O K. M. CHETTY vs STATE OF KARNATAKA, BY ITS SECRETARY TO GOVERNMENT, HOUSING AND URBAN DEVELOPMENT, DEPARTMENT

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Kar) 170

2011(3) KCCR 337
High Court of Karnataka
THE HONOURABLE MRS. JUSTICE B.V. NAGARATHNA
H.A. BALAJI, S/O K M CHETTY & OTHERS
VERSUS
THE STATE OF KARNATAKA, BY ITS SECRETARY TO GOVERNMENT, HOUSING AND URBAN DEVELOPMENT, DEPARTMENT & OTHERS
WRIT PETITION NOs. 32652 OF 2010 c/w 26849 OF 2010, 26850 OF 2010, 30279 OF 2010 & 3695-96 OF 2009 (LA-BDA)
Decided on : 04-03-2011

Advocates appeared:
For the Petitioner:T.S. Amar Kumar, Advocate.
For the Respondent:R1, K.S. Mallikarjunaiah, HCGP, R2 & R3, I.G. Gachchinamath, Advocates.

Headnote:BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Sections 17, 19 & 27: [B.V.Nagarathna, J] Acquisition proceedings - BDA demolishing the constructions put up on the acquired land in a high handed manner despite there being no Award passed and no possession being taken - Held, The high handed action of the BDA is deprecated. In the absence of making any award, BDA cannot enter into any property belonging to the land owner. Despite there being no award passed and neither possession having been taken, the Respondent/BDA nevertheless went ahead and demolished the construction put up on the property. The right of the BDA to acquire the property is only under a statute and not in the realm of eminent domain. Even when the State exercises its power as a right of eminent domain in fact that the owners of lands are protected by Article 300-A of the Constitution and the provisions of the Land Acquisition Act cannot be lost sight of. Any acquisition which has to be made by the BDA has to be made solely in accordance with law. The BDA cannot claim to have recovered property when possession of the property does not vest in the State Government under the acquisition proceedings. On facts, held, In its enthusiasm to acquire property and form layouts, BDA cannot lose sight of the fact that it has to act within the four corners of the statute. The action of the Respondent/BDA in demolishing the structures and buildings on the Petitioners property is indeed to be condemned when on the one hand, BDA is unable to complete execution of its various schemes on time, it cannot rest on false laurels by claiming to have recovered property belonging to it when that is not the truth. The publicity made by the BDA in the present case by issuing a wholly untrue and false press release is also deprecated. Therefore, the Petitioners are entitled to additional compensation apart from the compensation which has already been granted in respect of the demolition made by the BDA.
LAND ACQUISITION ACT, 1894 - Section 11-A: [B.V.Nagarathna, J] Limitation for making an Award - Applicability of Section 11-A to the provisions of BDA Act - Held, Section 11-A of the Land Acquisition Act is not applicable to the provisions of the BDA Act. Having regard to the fact that the main object of BDA Act is for the purpose of the planning of the city of Bangalore and acquisition of the lands is only incidental to the planning of the Metropolitan City of Bangalore, strict compliance with Section 11-A of the Act is not mandated under the provisions of the BDA Act. Nevertheless, awards would have to be made within a reasonable period so as to complete the process of acquisition in order to implement a particular scheme within a reasonable time. Further held, In the context of BDA Act, in order to determine, what is reasonable time within which an award has to be made subsequent to issuance of the acquisition Notifications the Act, under Section 27 of the said Act can be adverted to wherein, it is stated that where within a period of five years from the date of publication in the Official Gazette of the declaration under sub-Section (1) of Section 19, the Authority fails to execute the scheme substantially, the scheme would lapse and the provisions of Section 36 would become inoperative. Therefore, it is incumbent upon the BDA to execute the scheme substantially within a period of five years from the date of declaration under section 19(1) of the BDA Act. In view of the said restriction placed on BDA, it can safely be concluded that a period of five years would be reasonable period within which awards have to be passes. - Whenever the acquisition Notification are issued in terms of Section 17, and 19 of the BDA Act and that within a period of five years from the date of issuance of the final declaration, the awards have to be made.

Judgment :-

1. Since common and identical prayers have been sought in these writ petitions, they have been heard together and are disposed of by this common order.

2. In these writ petitions, the petitioners have sought a declaration that the Notification issued under Section 17(1) of the Bangalore Development Authority Act, 1976 (hereinafter, referred to as the “BDA Act”) dated 15/12/1984 and the Notification issued under Section 19 of the said Act, dated 28/11/1986, stand vitiated due to the inordinate delay in completing the acquisition proceedings, in so far as the petitioners’ lands are concerned. The petitioners have also sought a declaration to the effect that the acquisition proceedings have lapsed on account of the abandonment of the scheme in respect of the petitioners lands.

3. The petitioner in W.P.No.32652/2010 claims to be the owner of the land bearing House List Khata No.79/1 (Old) and New Khata No.80/1 carved out of Sy.No.53/3A, measuring 6300 sq. ft. situated at Bommanahalli Village, Begur Hobli, Bangalore South Taluk, Bangalore.

4. The petitioner in W.P. No.26849/2010 claims to be the owner and original khatedar of the land bearing Sy.No.52/3A. measuring 2 Acres 11 Guntas situated at Bommanahalli Village, Begur Hobli, Bangalore South Taluk, Bangalore.

5. The petitioners in W.P.No.26850/2010 claims to be the co-owners of industrially converted land bearing Sy.No.52/3A, measuring 11,560 sq. ft. situated at Bommanahalli Village, Begur Hobli, Bangalore South Taluk, Bangalore.

5. The petitioners in W.P.No.30279/2010 claim to be the owners of land bearing Sy.No.52/4, measuring East to West 256 ft. 3 inches, North to South on the Eastern side 295 ft, 7 inches, on the Western side 292 ft. 5 inches, totally measuring 72,963 sq. feet, situated at Bommanahalli Village, Begur Hobli, Bangalore South Taluk, Bangalore.

6. The petitioners in W.P.No.3695-96/2009 claim to be the legal heirs of one Smt.Papakka, w/o.Marappa, who was the original khatedar of the land bearing Sy.No.44/4A, measuring 23 Guntas situated at Bommanahalli Village, Begur Hobli, Bangalore South Taluk, Bangalore.

7. It is the case of the petitioners that their lands were the subject matter of acquisition under the provisions of the Act along with other lands for the purpose of formation of layout called “Between Hosur Road and Sarjapura Road” and more popularly called as “Hosur Road”. The notifications which have been issued have not been challenged by them but however, the awards have not been passed till the date of filling of the writ petitions in their cases and under the circumstances, they have sought a declaration that the acquisition has lapsed in so far as their lands are concerned. Elaborated their contentions they state that on 15/12/1984 Notification under Section 17 of the BDA Act was issued and the same was gazetted on 17/1/1985. Subsequently, declaration was made by virtue of Notification issued under Section 19(1) of the BDA Act on 28/11/1986, which was gazetted on 25.12.1986, that in respect of the lands acquired, awards have been passed in the year 1986-87. But in so far as the petitioner’s lands are concerned, no awards have been passed. Consequently, possession of the lands also vest with the petitioners and the respondent-authorities have not taken possession from the petitioners.

8. It is their case that in terms of the Land Acquisition Act (hereinafer, referred to as the “Act”), if an award is not passed within two years from the date of publication of the final notification under Section 11-A of the Act, acquisition would lapse under the said Act. It is the case of the petitioners that despite Section 11-A of the Land Acquisition Act not being applicable to the Bangalore Development Authority Act, the inordinate delay in not passing the award for over 21/2 decades would imply that the respondent-authorities have no intention of making use of the petitioners lands for the purpose of the layout and under the circumstances, they ha

Click Here to Read the rest of this document

2011 Supreme(Kar) 170

Cases Referred (8)