SRI. H. CHIKKA PUTTAIAH v. THE BANGALORE DEVELOPMENT AUTHORTY

THE BANGALORE DEVELOPMENT AUTHORTY, HAVING TS OFFCE IN T. CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE-560020. R/BY ITS COMMSSIONER.

STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LAND ACQUISITION, VIDHANASOUDA, BENGALURU-1.

THE SLAO, V.V. BULDING, 3RD FLOOR, BANGALORE-01. (BY SHRI G.S. KANNUR SENIOR ADVOCATE FOR SRI. K. KRISHNA, ADVOCATE FOR R1 & R3, SRI. NAVEEN CHANDRASHEKAR, AGA FOR R2) … PETITIONER … RESPONDENTS THIS PETITON IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OR ORDER OR DIRECTION DIRECTING THE RESPONDENT NOT TO DISTURB THE POSSESSION OF THE PETITIONER OF THE LAND BEARING SY.NO.14/2 TO AN EXTENT OF 1 ACRE 22 GUNTAS SITATED IN MALAGALA VILLAGE, PAPAREDDYPALYA, YESHWANTHAPURA HOBLI, BANGALORE NORTH TALUK, AS WELL AS RESTRAIN THE RESPONDENT FROM FORMING LAYOUT BY DIGGING DRAINS AND CONSTRUCTION CUTVERTS IN PURSUANCE OF THE FINAL NOTIFICATION AT ANNEXURE-H. - 2 - NC: 2024:KHC:11303 WP No. 16216 of 2016 THIS PETITION COMING ON FOR PRONOUNCEMENT AND THE SAME HAVING BEEN HEARD AND RESERVED FOR ORDER ON 19.02.2024, THIS DAY, THE COURT, MADE THE FOLLOWING: ORDER

1. The respondent – BDA acquired Sy.No.14/2 in Malagalahalli Village, Yashwantpur Hobli, Bengaluru North Taluka, for formation of Nagarabhavi 2nd Stage in the year

1986. The petitioner has filed the instant writ petition praying for setting aside the said acquisition.

2. The case of the petitioner is that, 1 acre 22 guntas of in Sy.No.14/2 was owned by one Smt. Sarojini, when the property was sought to be acquired under Preliminary Notification. That the name of the said Smt. Sarjoini was reflected in the revenue records and in spite of it, the respondent did not issue any notice to her about the intended acquisition, because of which she could not file any objections.

3. It is also contended that no notice was issued to her at the time of taking possession of the property and it is further submitted that, the possession as - 3 - NC: 2024:KHC:11303 WP No. 16216 of 2016 contemplated under law has never been taken. It is further

contended that Smt. Sarojini executed a Will in favour of the petitioner herein in respect of the property concerned and after her death in the year 2002, the petitioner became the owner of the property.

It is contended that as the possession of the property was not taken, the petitioner continued to be in possession of the property and he has developed the property and only recently before filing of the writ petition, he came to know about the acquisition and immediately he has preferred a writ petition.

Per contra, advocate for the BDA has contended that notice was issued to the Khatedar of the property, possession was taken in the manner known to law, notification has been issued under Section 16(2) of the Land Acquisition Act. It is further submitted that the original owner of the property has not challenged the acquisition and it is not open for the petitioner to challenge the same. It is also contended that the award has been - 4 - NC: 2024:KHC:11303 WP No. 16216 of 2016 passed and the amount has been deposited in the Court. For the said reason, it is prayed that the writ petition be dismissed.

In the course of the proceedings, the parties have produced the Preliminary Notification, Final Notification, order passed in W.P. No.1370/1987, revenue records pertaining to the property concerned, Google Map showing the present status of the property, note sheets of the BDA showing that the constructions have been come up on the property, original layout plan of Nagarabhavi 2nd Stage and also the subsequent plan prepared by the in respect of the property, which is the subject matter of the writ petition along with few adjacent properties. A report of the Executive Engineer of the BDA is also filed showing the present status of the property.

The aforementioned documents reveal that, the revenue documents contained the name of two persons including the name of Smt. Sarojini as the Khatedar of the property in Sy.No.14/2 when the Preliminary Notification - 5 - NC: 2024:KHC:11303 WP No. 16216 of 2016 was issued. However, it is admitted by the BDA that notice was not issued to Smt. Sarojini about the acquisition. Admittedly, no notice was issued to said Smt. Sarojini even when the BDA sought to take possession on the property. In proof of taking possession of the property, the BDA has produced a copy of the Mahazar, dated 15.12.1987 and the notification, dated 06.07.1991 as contemplated under Section 16(2) of the Land Acquisition Act. It is also submitted that, an award has been passed subsequently and the amount is deposited in the Reference Court.

The documents also reveal that, the BDA in the original plan regarding Nagarabhavi 2nd Stage did not include the property, which is the subject matter of the writ petition. It is only later that the additional plan is prepared where a layout is sought to be formed on the property of the petitioner. It is also not in dispute that certain constructions have come up on the property of the petitioner and the property has to be considered as developed and the said construction is having electricity and - 6 - NC: 2024:KHC:11303 WP No. 16216 of 2016 water supply and the people are living on the said property. The undisputed Google Map and the report of the Executive Engineer of the BDA produced, also indicates that the property has been developed.

Advocate for the petitioner contends that the present petitioner has not purchased the property from Smt. Sarojini, the erstwhile owner, but has succeeded to her interest by way of a Will and hence, he is entitled to file a writ petition. It is further contended that Smt. Sarojini and even the petitioner for quite a long time was unaware of the acquisition proceedings as no notice of the acquisition proceedings was served on the said Smt. Sarojini and even no notice of taking possession of the property was served on her.

Advocate for the petitioner has relied upon the judgment of this Court in W.P. No.45498/2014, disposed off on 13.04.2016, wherein at paragraph Nos.5 & 6 it has held as under: “5. However, this would hinge on the - 7 - NC: 2024:KHC:11303 WP No. 16216 of 2016 circumstances whether physical possession has been taken. Hence, in the present case on hand, it would be incumbent on the BDA to prove that physical possession of the land has been taken. To evidence this circumstance, the BDA has produced a mahazar which is at Annexure-“R4” and a perusal of Annexure-“R4” dated 29.12.1986 would indicate that it is a standard printed form with blanks filled in. In that, the BDA in several cases before this Court, has sought to place reliance on such documents. It indicates that there were five persons present when the alleged possession was taken. It is not clear whether those five persons have affixed their signatures or their names have been written. However, the names can certainly be read. There is one Dharnappa, Sanjeevappa, Venkatarayappa, Yadav Kumar and Ramanna. These persons are not shown to be representatives of the owner of the land. The owner of the land is significantly absent and the addresses of these persons nor their age or parentage is not indicated. In other words, if the BDA is called upon to establish the said document, it would certainly require the BDA to examine the persons who were present as witnesses. In the absence of their clear identity, this would be well- nigh impossible for the BDA to establish the said - 8 - NC: 2024:KHC:11303 WP No. 16216 of 2016 circumstance to the satisfaction of this court. Hence, the said document cannot be accepted by this Court, for the reason that when valuable property is sought to be divested from a land owner, it would require a much more honourable document to be executed to establish that he was divested of the property under due process of law. For otherwise, the document would have to be characterized as a nebulous document which is prepared for convenience. Accordingly, the same is negated.

6. The issuance of a notification under Section 16(2) of the LA Act would also have no significance, since it flows from the fact of having taken possession in terms of Annexure-R4, which cannot be accepted. Therefore, the issuance of a notification under Section 16(2) of the LA Act, cannot also have any significance. The contention that this is the manner that the law requires possession to be taken, is hence a statement which cannot be accepted.”

Based on the said judgment it is contended that, in the instant case also notice having not been given to the petitioner about taking possession of the property, the - 9 - NC: 2024:KHC:11303 WP No. 16216 of 2016 possession taken by respondent is not valid. It is further contended that even today, the petitioner is in possession of the property and the property having been fully developed, the writ petition has to be allowed.

The respondent – BDA has firstly contended that, the writ petition is liable to be dismissed on the ground of delay and laches, as the acquisition is of the year 1996 and the writ petition is filed in the year 2016. It is further contended that, once a notification is issued under Section 16(2) of the Act, the acquired land cannot be divested as the land vests with the State.

It is also contended that, once possession is taken or when compensation is paid, the scheme shall not lapse and the acquisition is said to be completed. Reliance is placed on the judgment of the Hon’ble Supreme Court in LAND AND BUILDING DEPARTMENT THROUGH SECRETARY & ANR. VS. ATTRO DEVI & ORS.1, wherein at paragraph Nos.11 to 13, it is held as under: 1 2023 LiveLaw (SC) 302 - 10 - NC: 2024:KHC:11303 WP No. 16216 of 2016 “11. The Constitution Bench of this Court in Indore Development Authority's case (supra) had opined that satisfaction of either of the conditions namely either taking possession of the acquired land or payment of compensation to the landowners would be sufficient to save the acquisition from being lapsed in terms of Section 24(2) of the 2013 Act. Various questions posed before the Constitution Bench of this Court were also answered. Relevant para-Nos.362 and 366 are extracted below: “362. Resultantly, the decision rendered in Pune Municipal Corporation & Anr. (supra) is hereby overruled and all other decisions in which Pune Municipal Corporation (supra) has been followed, are also overruled. … ...

In view of the aforesaid discussion, we answer the questions as under:

366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act.

366.2. In case the award has been passed within - 11 - NC: 2024:KHC:11303 WP No. 16216 of 2016 the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.

366.3. The word “or” used in Section 24(2) between possession and compensation has to be read as “nor” or as “and”. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse. (emphasis supplied)

366.4. The expression “paid” in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of - 12 - NC: 2024:KHC:11303 WP No. 16216 of 2016 notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of nondeposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the “landowners” as on the date of notification for land acquisition under Section 4 of the 1894 Act.

366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who refused accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.

366.6. The proviso to Section 24(2) of the 2013 Act - 13 - NC: 2024:KHC:11303 WP No. 16216 of 2016 is to be treated as part of Section 24(2), not part of Section 24(1)(b).

366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).

366.8. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.

366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and timebarred claims and - 14 - NC: 2024:KHC:11303 WP No. 16216 of 2016 does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.”

12. The issue as to what is meant by "possession of the land by the State after its acquisition" has also been considered by Constitution Bench of Hon'ble Supreme Court in Indore Development Authority’s case (supra). It is opined therein that after the acquisition of land and passing of award, land vests in the State from all encumbrances. The vesting of land with the State is with possession. Any person retaining possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed residing or physically occupying the same once process of acquisition is complete. If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any re-entry made by any person is nothing else but trespass on the - 15 - NC: 2024:KHC:11303 WP No. 16216 of 2016 State land. Relevant paragraphs 244, 245 and 256 are extracted below: "244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word "possession" has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression "physical possession" is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to possess the land which vests in the State free from all encumbrances.

The question which arises whether there is any difference between taking possession under - 16 - NC: 2024:KHC:11303 WP No. 16216 of 2016 the Act of 1894 and the expression "physical possession" used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case. xxxx - 17 - NC: 2024:KHC:11303 WP No. 16216 of 2016

Thus, it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under Section 16, takes place after various steps, such as, notification under Section 4, declaration under Section 6, notice under Section 9, award under Section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser enures for his benefit and on behalf of the owner ." (emphasis supplied)

13. It is also a fact to be noticed and taken care - 18 - NC: 2024:KHC:11303 WP No. 16216 of 2016 of that large chunk of land is acquired for planned development to take care of immediate need and also keep buffer for future requirements. Such portion of land may be lying vacant also. As has observed Indore Development Authority’s case (supra) by this Court, the State agencies are not supposed to put police force to protect possession of the land taken after process of acquisition is complete. As far as the case in hand is concerned, the land even if was lying vacant, is required now for a project of national importance construction of the Delhi Saharanpur-Dehradun Highway starting Akshardham Junction to Delhi/UP Border, in the State of Delhi in Phase-I of Bharatmala Pariyojana.”

The petitioner and respondents have also relied upon several other judgments, to prove the same interpretation of law. Hence each of the judgments are not examined herein.

The question that arises for consideration in the instant writ petition is as to

whether the land has been acquired in the manner known to law or not and if not can - 19 - NC: 2024:KHC:11303 WP No. 16216 of 2016 the acquisition insofar as it relates to the land of the petitioner is concerned can be set aside?

Admittedly, no notice has been issued to Smt. Sarojini at the time of issuance of Preliminary Notification or when the land was taken possession of as contended by the BDA. The said Smt. Sarojini did not have the notice to file her objections as to why the land should not be acquired. True, BDA is not required to make a detailed inquiry into who is the owner of the property and issue them notice. But they are required to issue notice to the persons whose names are found in the Revenue records. Admittedly, the Mahazar produced by the BDA showing that they had taken possession of the property, indicate that it is a standard printed Form with blanks filled in. It indicates that there were five persons present when the alleged possession was taken up. But their details are not properly forthcoming. As held in W.P. No.45498/2014, it would not be possible for the BDA to prove the fact of taking possession of the property in the manner known to - 20 - NC: 2024:KHC:11303 WP No. 16216 of 2016 law. Under the given facts and circumstances, the Mahazar has to be considered as a nebulous document. It is not clear whether those five persons have affixed their signatures or their names have been written. Admittedly, the owner nor her representative was present at the time of taking possession as no notice of taking possession was issued to her. It is also admitted that there has been no order passed staying or setting aside the operation of the order passed in W.P. No.45498/2014 so far. Thus, in the present circumstances also, issuance of notification under Section 16(2) of the Land Acquisition Act would also have no significance since it flows from the fact of taking possession in terms of the Mahazar, which is not valid.

Further, the petitioner in the instant case is not a purchaser of the property. Smt. Sarojini who was his predecessor in title admittedly did not receive any notice from the BDA regarding the acquisition or taking possession of the same and under the circumstances, it has to be considered that she was unaware of the acquisition - 21 - NC: 2024:KHC:11303 WP No. 16216 of 2016 proceedings. Under the circumstances, she not challenging the acquisition proceedings during her life time will not become fatal to the case of the petitioner. Further, the petitioner is not a purchaser of the property. He claims to have succeeded to the property by way of a Will. Whether the Will is valid or not, cannot be questioned by the BDA but by a person who would be otherwise entitled to succeed to the estate of Smt. Sarojini. Thus, the stand of the BDA that the petitioner is not entitled to question the acquisition cannot be accepted. Further, the award though passed has not been claimed by the petitioner herein.

For the aforementioned reason, the judgment of the apex Court in the case of LAND AND BUILDING DEPARTMENT THROUGH SECRETARY & ANR. VS. ATTRO DEVI & ORS. (Supra) does not come to the rescue of the respondent.

Admittedly, the property is presently developed and is in the possession of the petitioner. Though, the Final Notification was passed in the year 1986, till the year 2016, - 22 - NC: 2024:KHC:11303 WP No. 16216 of 2016 when the writ petition was filed by the petitioner, the BDA had not taken any steps to form a layout on the property. In fact, the layout plan submitted by the BDA indicates that initially the BDA did not intend to form any layout on the property of the petitioner and had virtually abandoned the same. However, subsequently, a separate plan has been prepared comprising of the property of the petitioner and few adjoining properties. However, the documents of the BDA as well as the Google Map produced by the petitioner, which is undisputed, shows that the property has been developed.

For the reasons that no notice was issued to the petitioner regarding the acquisition proceedings, possession of the property has not been taken by the BDA in the manner known to law, the petitioner continues to be in possession of the property, he has not accepted any compensation paid by the BDA and that the property has already been developed and the BDA did not take any steps to form a layout on the property from 1986 to 2016, this - 23 - NC: 2024:KHC:11303 WP No. 16216 of 2016 Court is of the opinion that it is a fit case to quash the impugned notifications (Preliminary and Final Notifications) in respect of the property of the petitioner is concerned.