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2009 Supreme(Kar) 301
High Court of Karnataka
THE HONOURABLE CHIEF JUSTICE MR. P.D. DINAKARAN & THE HONOURABLE MR. JUSTICE V.G. SABHAHIT
Sri. M. Maridev, S/o. late Sri. Muniyappa & Others
Versus
State of Karnataka Represented by its Principal Secretary to Government, Urban Development Department & Others
Writ Appeal No.1979 of 2007 (LA-BDA)
Decided on : 25-05-2009
For the Appellants :Sri. Padmanabha Mahale, Sr. Advocate for M/s. Law Associates, Advocates.
For the Respondents:R1, Sri. Basavaraj Karreddy, GA, R2 & 3, U. Abdul Khader, Advocate.
Headnote:BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 - Section 17: [P.D. Dinakaran, CJ & V.G. Sabhahit, J] Acquisition of land for formation of Nagarbhavi II State Housing Scheme - Issue of preliminary and final Notification -Passing of award - Record showing issue of notice to original owners - Proceedings having become final - Legal heirs and subsequent purchaser challenging it on the ground of want of notice and lapse of scheme under Section 17 of BDA Act and delay in issue of final Notification - Contention of the petitioners that they are in continuing in possession - Held, Impugned acquisition proceedings is not vitiated on account of passing of award after 11 years, as, whenever acquisition proceedings is initiated under the BDA. Act, Section 11-A of the L.A. Act is not applicable. Non-issuance of Section 16 (2) notification, is issued under Section 16 (2), that is the conclusive proof for taking possession and the same would not suffer from either presumption or assumption that actual possession has not been taken from the owners or occupants of the impugned lands. In view of the fact that house sites have been formed in major portion of the land acquired. There is substantial compliance and implementation of the scheme. It is settled law that all steps and proceedings taken by the State in exercise of its eminent domain power starting with the issuance of preliminary notification and ending with passing of award made against the original owners shall have a legal bearing on the legal heirs of the original owners and the subsequent purchasers thereto. Therefore the petitioners have no locus standi to challenge the impugned acquisition proceedings.
CONSTITUTION OF INDIA - Article 14: [P.D. Dinakaran, CJ & V.S. Sabhahit, J] Acquisition of larger extent of land under Bangalore Development Act - Major portion of land used for the scheme balance small extent distributed among poor - Refusal to denotify the remaining extent - Held, It is neither discriminatory nor violative of Article 14 of Constitution of India.
CONSTITUTION OF INDIA - Articles 226 & 227: [P.D. Dinakaran, CJ & V.G. Sabhahit, J] Delay and laches - Acquisition of land - Preliminary Notification issued on 15.7.1982 - Final Notification on 5.8.1996 - Award passed on 27.5.1997 - Writ Petition filed in 2003 - Held, There is glaring and apparent delay in challenging the impugned Notification. It is fatal even to entertain the Writ Petition.
LAND ACQUISITION ACT, 1894 - Section 48: [P.D. Dinakaran, CJ & V.S. Sabhahit, J] Acquisition of larger extent of land under Bangalore Development Act - Major portion of land used for the scheme balance small extent distributed among poor - Refusal to denotify the remaining extent - Held, It is neither discriminatory nor violative of Article 14 of Constitution of India.
P.D. Dinakaran, C.J.
Aggrieved by the order dated 21.3.2007 refusing to quash the preliminary notification dated 15.07.1982 and the final notification dated 05.08.1986 of the 3rd respondent herein, in so far as the petitioners lands are concerned, which were acquired by the 2nd
respondent-Bangalore Development Authority, for the purpose of formation of
Nagarbavi II stage Housing Scheme, the unsucce ssful writ petitioners in
W.P.No.8340/2003 have filed the above writ appeal.
2. For the purpose of convenience the parties are referred to as per their ranking in the Writ Petition.
3. The undisputed factual matrix of the case are:
.(i) The petitioners-1 to 3, who are the legal heirs of Muniyappa, the erstwhile original owner of the impugned land, did not question the acquisition of the impugned lands viz., land measuring 3 acres out of the total extent of 3 acres and 28 guntas, in Sy.No.55/1, situated at Malagalu Village, Yeshwanthapura Hobli, Bangalore North Taluk, acquired for the purpose of formation of Nagarbhavi II stage Housing Scheme of the 2nd respondent herein vide preliminary notification dated 15.07.1982, which had culminated in final notification dated 05.08.1986 and award was also passed on 27.5.1997.
.(ii) On verification of the original records produced by the BDA, it is found that a notice was issued to the original owner Muniyappa and he did not choose to challenge the acquisition proceedings and one S.M. Kannaiah, who was the owner of Sy.No.55, filed a Writ Petition challenging the acquisition proceedings in W.P.No.2272/1987, which came to be dismissed on 16.06.1995. Being aggrieved by the same, W.A.No.2055/1995 was filed and the same was dismissed on 10.01.1996 and therefore, the acquisition proceedings have become final. The award has been passed and possession of land has been taken on 12.7.2002 and handed over to the Engineering Department of BDA on 18.7.2002.
(iii) Petitioners-5 to 10 are the subsequent purchasers of the impugned lands under a registered sale deed dated 13.3.1991 from petitioners 1 to 3 who are the legal heirs of erstwhile owners of the impugned lands.
(iv) However, the petitioners have chosen to challenge the preliminary notification dated 15.07.1982 and final notification dated 05.08.1986 after more than 20 years.
4. According to the writ petitioners:
i) The impugned acquisition proceedings are vitiated as no notice was served on the petitioners as contemplated under Section 17 of the Bangalore Development Authority Act (for short “the B.D.A. Act”);
(ii) The impugned acquisition is bad in law in view of Section 11 of the Land Acquisition Act (for short “the L.A. Act”) as the award was passed on 27.5.1997 i.e. after 11 years, while the preliminary notification was passed on 15.7.1982 and the final notification was passed on 05.08.1986;
(iii) The petitioners are continuing to be in possession of impugned land as the petitioners are still in actual possession of the impugned land and no notification was issued under Section 16(2) of the L.A. Act; and
(iv) The impugned Housing Scheme got lapsed, as the same is not implemented within five years, as required under Section 27 of the B.D.A. Act. The decision in D. Narayanappa Vs. The State Of Karnataka, by its Secretary, Housing & Urban Development, Department Bangalore & Others (ILR 2005 KAR 295) is relied upon in this regard.
5. The writ petition was resisted by the respondent-State and the authorities on the ground that:
.(i) the petition is not maintainable in view of laches on the part of the petitioners;
.(ii) Since the erstwhile owners of the impugned land, despite service of valid statutory notice on them, had not chosen to challenge the acquisition proceedings and remained silent, the legal representatives of the erstwhile owners namely petitioners-1 to 4, also lost the right to challenge the impugned acquisition proceedings and therefore, the contention that no notice was served on them as per Section 17
