SRI MUNIRAJU M. v. THE STATE OF KARNATAKA

Judgment

#1 . THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY VIDHANA SOUDHA BENGALURU – 560 001. 2 . THE SPECIAL LAND ACQUISITION OFFICER REVENUE DEPARTMENT 2 3 .

#4. GOVERNMENT OF KARNATAKA – 560 001. KARNATAKA STATE GOVERNMENT ‘D’ GROUP EMPLOYEES CENTRAL ASSOCIATION (R) DR.AMBEDKAR VEEDHI M.S.BUILDING, 2ND STAGE BENGALURU REPRESENTED BY ITS PRESIDENT B.M.NATARAJ. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES ZONE-4, BANGALORE URBAN DISTRICT SAHAKARA SOUDHA NO.146, 3RD MAIN, 8TH CROSS MARGOSA ROAD MALLESHWARAM BENGALURU – 560 003. ... RESPONDENTS (BY SRI SPOORTHY HEGDE N., HCGP FOR R-1, R-2 AND 4; CAUSE TITLE AMENDED VIDE ORDER DATED 11.10.2023; R-3 – NOTICE IS HELD SUFFICIENT VIDE ORDER DATED 24.01.2024) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE OFFICE OF THE R-2 PERTAINING TO THE PRELIMINARY NOTIFICATION DATED 25/03/1992 VIDE NOTIFICATION NO. LAQ.SR.1-91-92 ISSUED UNDER SEC 4(1) OF THE LAND ACQUISITION ACT AS PER ANNEXURE-J AND THE FINAL NOTIFICATION DTD 29/01/1996 PASSED UNDER SEC BEARING NO.KA.E.191 BHOO.SWAABE86 AS PER ANNEXURE-K IN RESPECT 3 OF THE LAND BEARING SY.NO.28 OF SRIGANDHADAKAVALU VILLAGE, YESHWANTHAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU PETEITONER CONCERN ONLY; QUASH THE PRELIMINARY NOTIFICATION DTD 25/03/1992 VIDE NOTIFICATION NO. LAQ.SR.1-91-92 ISSUED UNDER SEC 4(1) OF THE LAND ACQUISITION ACT AS PER ANNEXURE-J AND THE FINAL NOTIFICATION DTD 29/01/1996 PASSED UNDER SEC BEARING NO.KAM.E.191 BHOO.SWAABE86 AS PER ANNEXURE-K IN RESPECT

OF THE LAND BEARING SY.NO.28 OF SRIGANDHADAKAVALU VILLAGE, YESHWANTHAPURA HOBLI, BENGALURU NORTH TALUK, BENGALURU MEASURING AN EXTENT OF 1.00 ACRE IS CONCERNED. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 25.04.2026, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioner is before this Court calling in question preliminary notification dated 25-03-1992 and final notification dated 29-01-1996 and consequent actions taken thereto qua the property of the petitioner. 4

#2. Heard Smt. Sadhana M. Desai, learned counsel for the petitioner and Spoorthy Hegde N., learned High Court Government Pleader appearing for respondents 1, 2 and 4.

#3. Facts, in brief, germane are as follows: -

3.1. Since the challenge in the subject petition pertains only to the acquisition proceedings, it would suffice if the facts are narrated from the stage of preliminary notification being issued.

3.2. The subject acquisition proceedings are initiated in the year 1992 by issuance of a preliminary notification dated 25-03-1992 under Section 4(1) of the Land Acquisition Act, 1894 (‘Act’ for short) for the purpose of construction of a layout by the 3rd respondent/Association. The petitioner’s land is listed at Sl.No.10 of the notification. Four years later, a final notification under Section 6(1) of the Act comes to be issued on 29-01-1996. Pursuant thereto, a general award came to be passed on 07-02-1998 under Section 11 of the Act and an award notice under Section 12(2) of the Act was subsequently issued on 09-02-1998 to several persons, including the petitioners grandfather - 5 Munihanumaiah. On 10-03-1998, a General Power of Attorney (GPA) comes to be executed by Munihanumaiah, along with his legal heirs, in favour of Venkatappa, authorizing him to act on their behalf in all matters relating to 2 acres of the land in Sy.No.28. It is the averment of the petitioner that subsequently, a corrigendum dated 16-03-2000 was issued, dropping 2 acres 30 guntas in Sy.No.28 from acquisition. Between 26-06-2004 and 16-07-2004, correspondences are exchanged between the respondents with regard to demolition of existing buildings and to take vacant possession of the lands in Sy.Nos.27/6 and 28. Although, by an order dated 27-12-2004, the Special Land Acquisition Officer (‘SLAO’ for short) holds that the compensation ought to be paid only to Munihanumaiah and not to the GPA holder, on 14-02-2005 it is seen that, Venkatappa, acting as GPA holder, received a sum of ₹4,32,199/- towards compensation for 2 acres of land in Sy.No.28.

3.3. In the interregnum, the land adjoining the petitioner’s property in Sy.No.28 had been purchased by the Rajajinagar Housing Society from members of the petitioner’s family for the purpose of forming a layout. A suit in O.S.No.7773 of 2004 is filed 6 the Rajajinagar House Building Co-operative Society (‘Rajajinagar Housing Society’ for short) against the 3rd respondent, seeking a decree of permanent injunction from interference with it’s property in Sy.No.28. The civil court, in its judgment and decree dated 29-11-2014 in O.S.No.7773 of 2004, passes an order restraining the 3rd respondent from interfering with the plaintiff’s peaceful possession of the land. When the 3rd respondent, on the basis of the acquisition proceedings attempts to trespass on the subject land in the year 2011, Munihanumaiah, the petitioner’s grandfather, files a suit in O.S.No.3395 of 2011 on 18-05-2011, seeking the relief of permanent injunction against the 3rd respondent. The petitioner’s father, Muniswamappa, appears on behalf of the original plaintiff, Munihanumaiah, in the suit, which is ultimately decreed in favour of the petitioner’s grandfather. In the judgment dated 29-11-2017 passed in O.S.No.3395 of 2011, it is observed that the subject land, which was part of the total land measuring 2 acres 30 guntas in Sy.No.28, had been excluded from the acquisition proceedings and was not acquired by the 3rd respondent. 7

3.4. Execution proceedings in Ex.P.No.1868 of 2020 comes to initiated by Muniswamappa, the petitioner’s father enforcement of the decree passed in O.S.No. 3395 of 2011. In the said proceedings, the executing court, through its order dated 08-01-2021 grants police protection in favour of Muniswamappa for safeguarding and securing possession of the subject property. However, during the course of the execution proceedings, several objector applications come to be filed by third parties, contending that the subject land belonging to the petitioner had already been acquired in favour of the 3rd respondent pursuant to the impugned acquisition notifications. In an application filed by the petitioner under the Right to Information Act, 2005, the Bangalore Development Authority (‘BDA’ for short), in its reply dated 02-01-2023, states that the layout formed in the name the 3rd respondent does not include Sy.No.28 and that no approval was granted for its formation of a layout over the land in Sy.No.28. It is, therefore, the petitioner has approached this Court seeking quashing of the preliminary and final notifications dated 25-03-1992 and 29-01-1996. 8

#4. The learned counsel appearing the petitioner Smt. Sadhana M. Desai, would vehemently contend that no possession has been taken by the respondents after issuance of final notification and communications exchanged between the respondents would clearly indicate that there was no possession taken at all. The learned counsel submits that mere paper possession or symbolic possession does not suffice, but it has to be in actual, by drawing up of a panchanama. Sanctioned plan that was issued by the BDA to the 3rd respondent/Association for formation of a layout nowhere mentions land in Sy.No.28. The learned counsel further submits that compensation is never paid to the land owner, instead, it is said to have been paid to the GPA holder. The learned counsel would submit that compensation for acquisition cannot be paid to the GPA holder as Sections 31 and 3(g) of the Act would cover the manner in which compensation has to be disbursed. The learned counsel submits that compensation can be given only to two categories of persons, one the person who is interested and the other, the person who is entitled. The provision does not include any agent like the GPA holder. The learned counsel submits that if compensation is not disbursed in 9 accordance with law, since title follows possession, unless compensation is paid, possession cannot vest with the State. The learned counsel further contends that after determination of compensation under Section 11 of the Act, award notice under Section 12(2) of the Act follows and after award notice, compensation is disbursed under Section 31 of the Act. It is only then the possession is vested in terms of Section 16 of the Act.

#5. Per contra, the learned High Court Government Pleader for the respondents would contend that there is gross delay in preferring the petition. The preliminary notification was of the year 1992 and the final notification was of the year 1996, which are called in question in the year 2023. The learned High Court Government Pleader would seek dismissal of the petition on this preliminary score. Even otherwise, the compensation has been paid to the GPA holder and the acquisition proceedings were completed long ago after payment of compensation to the hands of the GPA holder. 10

#6. I have given my anxious consideration to the submissions made by the respective learned counsel appearing for the respective parties and have perused the material on record. In furtherance whereof, following issues would arise consideration: (i) Whether respondents have lawfully completed the acquisition proceedings by taking possession of the subject land from the petitioner in accordance with the Act? (ii) Whether compensation can be paid to the power of attorney holder? ISSUE NO.1: Whether the respondents have lawfully completed the acquisition proceedings by taking possession of the subject land from the petitioner in accordance with the Act?

#7. To consider this issue, it would suffice if certain dates and events are noticed. On 25-03-1992 the notification under Section 4 of the Act is issued. The petitioner’s land measuring 1 acre, forming part of a larger extent of 2 acres and 30 guntas in Sy.No.28, is 11 listed at Sl.No.10 in the said notification in the name of the petitioner’s grandfather, Munihanumaiah. The same is also found in the final notification dated 29-01-1996. A general award is made under Section 11 of the Act on 07-02-1998. The general award insofar as the land of the present petitioner is concerned, reads as follows: “d£ÀgÀ¯ï CªÁqÀÄð: C) D) E) ÀƸÁé¢üãÀzÀ d«Ää£À ¨Á§ÄÛ ¸À.£ÀA.28gÀ°è 2J -30UÀÄ ¨s JPÀgÉ 1PÉÌ 1,50,000-00 gÀÆUÀ¼ÀAvÉ ªÀiË®å. ±ÉÃ.12gÀ C¢üPÀ ªÀiÁgÀÄPÀmÉÖ ªÀiË®å 4(2)gÀ ¸ÁªÀðd¤PÀ ¸ÀÆZÀ£Á ¥ÀvÀ ¥ÁæPÀn¹zÀ ¢£ÁAPÀ¢AzÀ LwÃ¥ÀÄð gÀa¸ÀĪÀ ¢£ÁAPÀzÀªÀgÉUÉ ¢.8-10-92 jAzÀ 8-1-97 gÀªÀgÉUÉ 1ªÀ-2w-2¢. ±ÉÃ.30gÀ ±Á¸À£À ¨s 4,12,500-00 æ 58,021-20 1,23,750-00 dĪÀiÁè 5,94,271-20 ÀvÀå dĪÀiÁè ªÉƧ®UÀÄ: LzÀÄ ®PÀë vÉÆA¨sÀvÀÛ£Á®ÄÌ ¸Á«gÀzÀ JgÀqÀÄ£ÀÆgÀ J¥ÀàvÉÆÛAzÀÄ gÀÆ. E¥ÀàvÀÄÛ ¥ÉʸÉUÀ¼ÀÄ ªÀiÁvÀæ. ¥ÀjºÁgÀ ªÉƧ®UÀÄ ¥ÁªÀw¸ÀĪÀ «ªÀgÀUÀ¼ÀÄ: FUÁUÀ¯Éà ZÀað¹gÀĪÀ ¥ÀjºÁgÀ ªÉƧ®UÀÄ gÀÆ.5,94,271-20 (gÀÆ. LzÀÄ ®PÀëÀzÀÀ vÉÆA¨sÀvÀÛ£Á®ÄÌ ¸Á«gÀzÀ JgÀqÀÄ£ÀÆgÀ J¥ÀàvÉÆÛAzÀÄ ºÁUÀÆ E¥ÀàvÀÄÛ ¥ÉʸÉUÀ¼ÀÄ ªÀiÁvÀæ.) ¥ÀjºÁgÀ ªÉƧ®UÀÄ ¥ÁªÀw¸À®Ä ºÀPÀÄÌzÁjPÉAiÀÄ£ÀÄß ¥Àj²Ã°¹ ºÀPÀÄÌzÁgÀjUÉ ¥ÁªÀw¸À¯ÁUÀĪÀÅzÀÄ. ºÀPÀÄÌzÁjPÉAiÀÄ°è vÀPÀgÁgÀÄ GAmÁzÀ°è ¨sÀƸÁé¢üãÀ PÁAiÉÄÝ PÀ®A 30 ªÀÄvÀÄÛ 31 gÀAvÉ £ÁåAiÀiÁ®AiÀÄPÉÌ dªÀiÁ ªÀiÁqÀ¯ÁUÀĪÀÅzÀÄ. DzÀgÉ ¥ÀjºÁgÀ ªÉƧ®UÀÄ ¥ÁªÀw¸À®Ä F PɼÀPÀAqÀ zÁR¯ÉUÀ¼À£ÀÄß ¥Àj²Ã°¸À¯ÁUÀĪÀÅzÀÄ. 1) ZÁ°Û ¸Á°£À ¥ÀºÀt 2) 12 ªÀµÀðzÀ IÄt¨sÁgÀgÁ»vÀå ¥ÀæªÀiÁt ¥ÀvÀæ 3) ¦n ¹J¯ï PÁAiÉÄÝ G®èAWÀ£É 4) ¨sÀƪÀÄAdÆgÁw PÁAiÉÄÝ G®èAWÀ£É. ¸À»/- «±ÉõÀ ¨s ÀÆ ¸Áé¢üãÁ¢üPÁjUÀ¼ÀÄ ¨ÉAUÀ¼ÀÆgÀÄ.” (Emphasis added) 12 The general award is issued in the name of the grandfather of the petitioner – Munihanumaiah along with other persons. Award notice under Section 12(2) of the Act is also issued. The award notice reads as follows: “£ÀA.JAK¹.21.95-96 «±ÉõÀ ¨s ÀÆ ¸Áé¢üãÁ¢üPÁjUÀ¼À PÀbÉÃj «±ÉéñÀégÀAiÀÄå PÉÃAzÀæ 3£Éà ªÀĺÀr, ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ:-7-2-98 CªÁqÀÄð £ÉÆÃnøÀÄ (¨sÀÆ ¸Áé¢üãÀ PÁ¬ÄzÉ PÀ®A 12(2) gÀ C£ÀéAiÀÄ) «±ÉõÀ ¨s ÀÆ ¸Áé¢üãÁ¢üPÁjAiÀĪÀgÀÄ, ¨ÉAUÀ¼ÀÆgÀÄ EªÀgÀ PÀbÉÃj¬ÄAzÀ ¨ÉAUÀ¼ÀÆgÀÄ f¯Éè ¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ vÁ®ÄèPÀÄ AiÀıÀªÀAvÀ¥ÀÄgÀ ºÉÆç½, ²æÃUÀAzsÀzÀ PÁªÀ®Ä UÁæªÀÄzÀ°ègÀĪÀ *****************************************************£ÁgÁAiÀÄt ©£ï ZÉ£ÀߥÀà *****£ÀgÀ¹AºÀAiÀÄå ********UÀAUÀ£ÀgÀ¹AºÀAiÀÄå,******* zÉÆqÀ Ø£ÀgÀ¹AºÀAiÀÄå ***** aPÀÌ£ÀgÀ¹AºÀAiÀÄå ªÀÄĤ **** ªÀÄĤUÀAUÀAiÀÄå wgÀĪÀļÀAiÀÄå EªÀjUÉ w°AiÀÄ¥Àr¸ÀĪÀÅzÉãÉAzÀgÉ ¤ªÀÄä ºÀQÌ£À d«ÄãÀÄ ¨ÉAUÀ¼ÀÄgÀÄ GvÀÛgÀ vÁ®ÆèPÀÄ, AiÀıÀªÀAvÀ¥ÀÄgÀ ºÉÆç½, ²æÃUÀAzs ÀzÀPÁªÀ®Ä UÁæªÀÄzÀ ¸À.£ÀA.28 JPÀgÉ 2 UÀÄAmÉ 30 d«ÄãÀÄ PÀ£ÁðlPÀ gÁdå ¸ÀPÁðj UÀÆæ¥ï “r” £ËPÀgÀgÀ PÉÃAzÀæ ¸ÀAWÀzÀªÀjUÉ DVgÀĪÀÅzÀPÁÌV F «¹ÛÃtðPÉÌ £ÀUÀzÀÄ ¥ÀjºÁgÀzÀ LwÃ¥ÀÄð (CªÁqÀÄð) ªÀiÁrgÀÄvÀÛzÉ. ¤ÃªÀÅ F ¸ÀA§AzsÀªÁV ¤ªÀÄä°ègÀ§ºÀÄzÁzÀ «²µÀÖ zÁR¯ÁwUÀ¼ÉÆqÀ£É ¢£ÁAPÀ:27-2-98 gÀAzÀÄ ¨É½UÉÎ 11-00 UÀAmÉUÉ «±ÉõÀ ¨sÀÆ ¸Áé¢üãÁ¢üPÁjAiÀĪÀgÀ PÀbÉÃj, «±ÉéñÀégÀAiÀÄå PÉÃAzÀæ, ¥ÉÆÃrAiÀÄA ¨ÁèPï, 3£Éà ªÀĺÀr, ¨ÉAUÀ¼ÀÆgÀÄ-1 EªÀgÀ ªÉÆPÁÌAUÉ gÀƧÄgÀÆ§Ä ºÁdgÁV CªÁqÀÄð ªÉƧ®UÀ£ÀÄß ¥ÀqÉAiÀÄvÀPÀÌzÀÄÝ, vÀ¦àzÀ®è ¸ÀzÀjà ºÀtªÀ£ÀÄß gÉ«£ÀÆå r¥Áfmï£À°è EqÀ¯ÁUÀÄvÉÛ. EzÀPÉÌ §rØ zÉÆgÉAiÀįÁgÀzÀÄ. ¥ÀjºÁgÀ ªÉÆvÀÛzÀ «ªÀgÀ: 1) d«ÄäUÁV ¥ÀjºÁgÀ 2) ±ÉÃ.12gÀ C¢üPÀ ªÀiÁgÀÄPÀmÉÖ ¨É¯É 3) ±ÉÃ.30gÀ ±Á¸À£À ¨sÀvÉå gÀÆ. 4,12,500-00 gÀÆ. 58021-20 gÀÆ. 1,23,750-00 MlÄÖ gÀÆ. 5,94,271-20

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#8. After the aforesaid events, GPA is executed by petitioner’s grandfather - Munihanumaiah and his sons in favour of one Venkatappa. This could be gathered from the power of attorney, the relevant portion of which reads as follows: MUNISWAMAPPA, HANUMANTHAPPA “KNOW ALL MEN BY THESE PRESENTS, We (1) Sri MUNIHANUMAIAH S/o late Muniyappa, aged about 67 years, (2) (3) (4) RAMAKRISHNAPPA, aged about 35 years, (5) NARASIMHA MURTHY, aged about 32 years, (6) GOPALA, aged about 30 years, all are sons of Munihanumaiah, all are residing at Eranapalya, Sreegandhadhakaval Dakale, Yeshwanthapura 42 38 years, years, 14 Hobli, Bangalore North Taluk, do hereby appoint, nominate constitute SRI VENKATAPPA, S/o Huchappa, aged about residing at Sollapuradhamma Temple, 85 years, Sunkadakatte, Vishwaneedam Post, Yeshwanthapura Hobli, Bangalore North Taluk, as our true and lawful attorney to do the following acts, deeds and things. …. …. ….

#1. To appear for and to represent us before any Government Statutory, local, Revenue, Tax and other authorities as well as courts and Tribunal in regard to the Schedule Property.

#2. To appear before the Special Land Acquisition Officer, Podium Block, Dr B.R. Ambedkar Street, Bangalore - 560 001 and to receive award amount on our behalf by producing the Power of Attorney executed by us today.

#3. To submit applications, affidavits statements, return to the Government and any other statutory authorities to obtain necessary clearances exemptions sanctions and permission required.

#4. To enter into an agreement of sale in respect of the schedule property as our attorney deemed fit and register the sale deed and to receive consideration from the Purchaser on my behalf in respect of the schedule property. …. …. …. SCHEDULE

#1. ALL that piece and parcel of the site bearing survey no.28 measuring 2 acres 00 guntas of Sreegandhadhakavalu Village, Yeshwanthapura Hobli, Bangalore north Taluk, which is bounded on: EAST BY: Sy. No. 28/1 WEST BY: Sy. No. 25/2 NORTH BY: Sy. No. 27/2, 27/3, 27/4 SOUTH BY: Sy. No. 28/2" (Emphasis added) 15 The GPA authorizes Venkatappa to appear before the SLAO, receive compensation, and enter into agreements of sale for 2 acres of the land in Sy.No.28. Several proceedings take place between the members of the family including partition of the property, all of which would not be necessary to be noticed for consideration of the issue in the lis. The petitioner also produces revenue records of the subject property pertaining to the year 2011, indicating that the property stood in the name of the petitioner’s grandfather, Munihanumaih, even at that time.

#9. Close to two years after passing of the award under Section 11 of the Act, the subject property is said to have been dropped from the acquisition proceedings through a corrigendum dated 16-03-2000. The corrigendum reads as follows: “ಕ(cid:4)ಾ(cid:6)ಟಕ (cid:8)ಾಜ(cid:10)ಪತ(cid:13), ಗುರು(cid:17)ಾರ, (cid:18)ಾ(cid:19)(cid:6) 16, 2000 (cid:20)(cid:21)ೇಷ ಭೂ (cid:27)ಾ(cid:28)(cid:29)ೕ(cid:4)ಾ(cid:29)(cid:30)ಾ(cid:31)ಗಳ (cid:30)ಾ!ಾ(cid:6)ಲಯ, (cid:20)(cid:21)ೆ(cid:28)ೕಶ(cid:28)ರಯ(cid:10) (cid:30)ೇಂದ(cid:13) 3(cid:4)ೇ ಮಹ), *ೕ)ಯಂ +ಾ,-, +ೆಂಗಳ.ರು ಭೂ (cid:27)ಾ(cid:28)(cid:29)ೕನ 0ಯಮ 1894 ಕಲಂ 16(2)ರ ಅನ(cid:28)ಯ ಅ(cid:29)ಸೂಚ(cid:4)ೆ ನಂ:ಎ5ಎಕೂ(cid:10) (2)ಎ6 ಆ8 2/91-92 ರಂ9ೆ ಭೂ (cid:27)ಾ(cid:28)(cid:29)ೕನ (cid:30)ಾ:;ಯ ಅ(cid:29)0ಯಮ 17 ರ<, =ದು;ಪ)!ಾದಂ9ೆ ಅ(cid:29)0ಯಮ 1894ರ ಅನ(cid:28)ಯ ಪ(cid:13)ಕರಣ 16 ಉಪ ಪ(cid:13)ಕರಣ (2)ರ @ೕ(cid:8)ೆAೆ ಈ ಮುಂCನ ಅನುಸೂ(cid:19)ಯ<, ನಮೂCDರುವ ಜFೕನುಗಳನುG (cid:27)ಾವ(cid:6)ಜ0ಕ ಉHೆ;ೕಶ(cid:30)ಾIJ ಅಂದ(cid:8)ೆ ಭೂ ಕ(cid:4)ಾ(cid:6)ಟಕ (cid:8)ಾಜ(cid:10) ಸ(cid:30)ಾ(cid:6)(cid:31) ')' ಗೂ(cid:13)K (cid:4)ೌಕರರ (cid:30)ೇಂದ(cid:13) ಸಂಘದ (0) +ೆಂಗಳ.ರು ರವರ (cid:4)ೌಕರರ 0(cid:17)ೇಶನಗNAಾJ ವಸ= 16 (cid:27)ಾ(cid:28)(cid:29)ೕನಪ)D(cid:30)ೊಳOPಾJHೆ ಎಂದು C(cid:4)ಾಂಕ 17.02.2000 ರಂದು ಕ(cid:4)ಾ(cid:6)ಟಕ (cid:8)ಾಜ(cid:10) ಪತ(cid:13)ದ Qಾಗ 9ರ ಪRಟ ಸಂSೆ(cid:10) 89 ರ<, ಪ(cid:13)ಕಟ(cid:17)ಾJರುವ ಅನುಸೂ(cid:19)ಯ<, ಸ(cid:17)ೆ(cid:6) ನಂ.ಗಳನುG (cid:30)ೈUVWರುವRದನುG ಈ (cid:30)ೆಳಕಂಡಂ9ೆ =ದು;ಪ) ಅ(cid:29)ಸೂಚ(cid:4)ೆಯನುG Yೊರ)ಸPಾJರುತZHೆ. ಅ(cid:29)ಸೂಚ(cid:4)ೆ =ದು;ಪ) ಅ(cid:29)ಸೂಚ(cid:4)ೆ =ದು;ಪ) ಅ(cid:29)ಸೂಚ(cid:4)ೆ ಅ(cid:29)ಸೂಚ(cid:4)ೆ =ದು;ಪ) =ದು;ಪ) [Pೆ,: +ೆಂಗಳ.ರು 9ಾಲೂ,ಕು: +ೆಂಗಳ.ರು ಉತZರ YೋಬN: ಯಶವಂತಪRರ Aಾ(cid:13)ಮ : ](cid:13)ೕಗಂಧದ(cid:30)ಾವಲು ಕ(cid:13).ಸಂ. J¯ïJ¹ £ÀA 1 2 20/95-96 21/95-96 ಸ(cid:17)ೆ(cid:6) ನಂ 27-6 28 «¹ÛÃtð J-UÀÄ 1-23 0-05 ¦PÉ 2-30 (cid:27)ಾ(cid:28)(cid:29)ೕನಪ)D(cid:30)ೊಂಡ C(cid:4)ಾಂಕ 21-12-99 21-12-99 ಸ_/- (cid:20)(cid:21)ೇಷ ಭೂ (cid:27)ಾ(cid:28)(cid:29)ೕ(cid:4)ಾ(cid:29)(cid:30)ಾ(cid:31)ಗಳ‘ +ೆಂಗಳ.ರು.”

#10. The suit filed by the grandfather of the petitioner’s grandfather in O.S.No.3395 of 2011 against the 3rd respondent comes to be decreed on 29-11-2017, granting permanent injunction and restraining the 3rd respondent from interfering with the peaceful possession and enjoyment of the petitioner’s land. The relevant portion of the judgment dated 29-11-2017 reads as follows: “16. Apart from the production of these documents, In the cross-examination, P.W.1 has categorically admits that this suggestion that the suit property was not standing in the name of his father and witness volunteers that it was standing in the 17 name of his father. This clear statement coupled with the document shows that the property continuously to be in possession of the plaintiff. Further, Exs.P.22 to P.55 are the election identify card, electricity bills, Aadhar Card and Ration card of plaintiff Muniswamappa, Hanumanthappa, Vijay Bhuvaneshwari, K.M.Ramakrishnappa and Narasimha Murthy shows that they are continuously in possession and enjoyment of the property and it is already discussed supra that the plaint schedule property is not acquired by Government as per the observation made in preliminary issue No.1. Apart from production of these documents, P.W.1 has produced six photographs along with C.D. as per Ex.P.7. Again, supports the case of the P.W.1 to show that he is in continuous and actual possession and enjoyment of the property since more than 39 years. Hence, I answer this issue in the affirmative. …. …. ….

#18. Issue No.3:- The plaintiff has successfully proved that acquisition of the plaint schedule property by the Government is dropped and has also proved his lawful possession and enjoyment of the possession and the interference of the defendant as per the observations made in preliminary issue No.1 and issue Nos. 1 & 2. Hence, the plaintiff is entitled for relief of permanent in the injunction. Accordingly, I answer this issue affirmative.” (Emphasis added) The aforesaid judgment, indicates the fact that the land is dropped from the acquisition proceedings and the petitioner’s family is in the lawful possession and enjoyment of the property for more than 39 years since the date of institution of the suit. 18

#11. Long before the aforesaid suit, another in O.S.No.7773 of 2004 comes to be instituted by the Rajajinagar Housing Society against the 3rd respondent. This suit too is decided against the 3rd respondent/Association, in favour of the Rajajinagar Housing Society. In the judgment dated 29-11-2014 it is observed that the plaintiff – Rajajinagar Housing Society was in possession of the disputed sites in Sy.No.28 and the 3rd respondent was instead illegally interfering with peaceful enjoyment of the said property. This decree is said to have become final.

#12. Later, in 2020, the petitioner’s father, Muniswamappa initiates execution proceedings in the year Ex.P.No.1868 of 2020 for execution of the decree granted in O.S.No.3395 of 2011. Several people are said to have objected to the execution proceedings stating that the subject land already stood acquired for formation of a layout by the 3rd respondent/Association in terms of the impugned notifications. Thereafter, the petitioner files an application before the BDA under the Right to Information Act, 2005 enquiring about the plan sanctioned by the BDA for formation of a 19 layout on Sy.No.28. The reply given by the BDA to the said application reads as follows: “ಇವ(cid:31)Aೆ, ](cid:13)ೕಮ=. ಪಲ,(cid:20) ನಂ. 11, 1(cid:4)ೇ ಮಹ), 10(cid:4)ೇ ಅಡdರ(cid:27)ೆZ, ಕಬef gೇhೆ, +ೆಂಗಳ.ರು-560 002. (cid:18)ಾನ(cid:10)(cid:8)ೆ, (cid:20)ಷಯ:- (cid:18)ಾ_= ಹಕುI (cid:20)iೇಯಕ 2005ರ ಅ)ಯ<, (cid:18)ಾ_= (cid:30)ೋ(cid:31)ರುವ ಬAೆj. ಉPೆ,ೕಖ:- ತಮn ಅ[(cid:6) [IPO No 58F 578972] ***** (cid:20)ಷಯ(cid:30)ೆI ಸಂಬಂ(cid:29)Dದಂ9ೆ, (cid:18)ಾ_= ಹಕುI (cid:30)ಾ:; 2005 ರ ಅ)ಯ<, ಸ<,Dರುವ ಉPೆ,ೕoತ ಅ[(cid:6)Aೆ ಸಂಬಂ(cid:29)Dದಂ9ೆ ಈ (cid:30)ೆಳಕಂಡಂ9ೆ (cid:18)ಾ_= 0ೕಡPಾJHೆ. vÀªÀÄä «±Áé¹, ¸À»/- (gÁPÉñï PÀĪÀiÁgï .J) ¸ÁªÀðd¤PÀ ªÀiÁ»w C¢üPÁj ºÁUÀÆ, G¥À ¤zÉÃð±ÀPÀgÀÄ £ÀUÀgÀ AiÉÆÃd£Á «¨sÁUÀ, ¨ÉAC¥Áæ, ¨ÉAUÀ¼ÀÄgÀÄ. ¥sÉÆãï:080-23443206” 20 The reply states that in the approval granted for the purpose of formation of the layout to the 3rd respondent/Association, Sy.No.28 in which the subject land of the petitioner is situated, was not included.

#13. Now driving back to the issue as to whether the acquisition proceedings are in accordance with law, it would be apposite to refer to the judgments of the Apex Court.

13.1. A five Judge Bench of the Apex Court in the case of INDORE DEVELOPMENT AUTHORITY v. MANOHARLAL 1 has held as follows: “…. …. ….

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). (Emphasis supplied) 1 (2020) 8 SCC 129 21 The Apex Court holds, be it under the old Act or under the new Act, the mode of taking possession as contemplated under the law would be by drawing an inquest report or mahazar as the case would be. Once this procedure is completed, it is only then, the land would vest with the State.

13.2. The Apex Court a little earlier, in the case of PRAHLAD SINGH v. UNION OF INDIA2 holds as follows: “13. We have given our serious thought to the entire matter and carefully examined the records. Section 16 lays down that once the Collector has made an award under Section 11, he can take possession of the acquired land. Simultaneously, the section declares that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of in the this section, vesting of the acquired Government takes place as soon as possession is taken by the Collector after passing an award under Section 11. To put it differently, the vesting of land under Section 16 of the Act presupposes actual taking of possession and till that is done, legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiring authority. Since the Act does not prescribe the mode and manner of taking possession of the acquired land by the Collector, it will be useful to notice some of the judgments in which this issue has been considered.

#14. In Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] Bhagwati, J. (as he then was), speaking for himself and 2 (2011) 5 SCC 386 22 Gupta, J. disagreed with Untwalia, J. who delivered a separate judgment and observed: (SCC pp. 711-12, para 28) “28. … We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking ‘symbolical’ possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard-and-fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was lying fallow and there was no crop on it at the material time, the act of the Tahsildar in going on the spot and inspecting the land for the purpose of determining what part was waste and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tahsildar, but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities, as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession, without the occupant or the owner ever coming to know of it.”

#15. In Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212] the Court negatived the finalisation of the acquisition argument that even after (emphasis supplied) 23 proceedings possession of the land continued with the appellant and observed: (SCC p. 215, para 4) “4. It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well-settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.”

#16. In P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC 489] the Court referred to the observations made by Bhagwati, J. in Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] that no hard-and-fast rule can be laid down as to what act would be sufficient to constitute taking of possession of the acquired land and observed that when there is no crop or structure on the land only symbolic possession could be taken.

#17. In NTPC Ltd. v. Mahesh Dutta [(2009) 8 SCC 339 : (2009) 3 SCC (Civ) 375] the Court noted that the appellant NTPC paid 80% of the total compensation in terms of Section 17(3-A) and observed that it is difficult to comprehend that after depositing that much of amount it had obtained possession only on a small fraction of land.

#18. In Sita Ram Bhandar Society v. Govt. of NCT of Delhi [(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268] and Omprakash Verma v. State of A.P. [(2010) 13 SCC 158 : (2010) 4 SCC (Civ) 823] it was held that when possession is to be taken of a large tract of land then it is permissible to take possession by a properly executed panchnama. Similar view was expressed in the recent judgment in Brij Pal Bhargava v. State of U.P. [(2011) 5 SCC 413 : (2011) 2 Scale 692]

#19. The same in Banda Development Authority v. Moti Lal Agarwal [(2011) 5 SCC 394] issue was recently considered 24 decided on 26-4-2011. After making reference to the judgments in Balwant Narayan Bhagde v. M.D. Bhagwat [(1976) 1 SCC 700] , Balmokand Khatri Educational and Industrial Trust v. State of Punjab [(1996) 4 SCC 212] , P.K. Kalburqi v. State of Karnataka [(2005) 12 SCC 489] , NTPC Ltd. v. Mahesh Dutta [(2009) 8 SCC 339 : (2009) 3 SCC (Civ) 375] , Sita Ram Bhandar Society v. Govt. of NCT of Delhi [(2009) 10 SCC 501 : (2009) 4 SCC (Civ) 268] , Omprakash Verma v. State of A.P. [(2010) 13 SCC 158 : (2010) 4 SCC (Civ) 823] and Nahar Singh v. State of U.P. [(1996) 1 SCC 434] this Court laid down the following principles:(Bandra Development Authority case [(2011) 5 SCC 394] , SCC p. 411, para 37) “(i) No hard-and-fast rule can be laid down as to what act would constitute taking of possession of the acquired land. (ii) If the acquired land is vacant, the act of the State authority concerned to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession. If crop the acquired is standing on land or (iii) building/structure exists, mere going on the spot by the authority concerned will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the authority concerned will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken. (iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document. (v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3-A) and substantial portion of the acquired land has been utilised in furtherance of the particular 25 public purpose, then the court may reasonably presume that possession of the acquired land has been taken.” judgment laid down

#20. If the present case is examined in the light of the facts which have been brought on record and the principles in Banda Development Authority case [(2011) 5 SCC 394] it is not possible to sustain the finding and conclusion recorded by the High Court that the acquired land had vested in the State Government because the actual and physical possession of the acquired land always remained with the appellants and no evidence has been produced by the respondents to show that possession was taken by preparing a panchnama in the presence of independent witnesses and their signatures were obtained on the panchnama.

#21. A reading of the khasra girdawari and jamabandis, copies of which have been placed on record, shows that actual and physical possession of the acquired land is still with the appellants. Jamabandis relate to the year 2005-2006. Copies of notice dated 10-2-2011/11-2-2011 issued by the Uttar Haryana Bijli Vitran Nigam Ltd. relates to Appellant 1, Prahlad Singh and this, prima facie, supports the appellants' assertion that physical possession of the land is still with them.

#22. Respondents 3 to 6 have not placed any document before this Court to show that actual possession of the acquired land was taken on the particular date. Therefore, the High Court was not right in recording a finding that the acquired land will be deemed to have vested in the State Government. (Emphasis supplied) The Apex Court while noting the failure of the State in taking possession of the lands as mandated under the Act observes that no evidence has been produced to show that possession was taken by preparing a panchnama in the presence of independent 26 witnesses and that their signatures were obtained on the panchnama. Section 16 of the Act deals with taking possession of the land by the Collector once an award is passed under Section 11. Once the Collector takes possession, the acquired land vests absolutely in the Government, free from all encumbrances. Such vesting of the land occurs only after possession is taken following the award under Section 11. Therefore, vesting under Section 16 of the Act presupposes actual possession and until then, no legal presumption of vesting can arise in favour of the acquiring authority.

13.3. Later, the Apex Court in the case of KOLKATA MUNICIPAL CORPORATION v. BIMAL KUMAR SHAH3, holds as follows: “…. …. ….

33.7.The Right of conclusion

33.7.1. Upon conclusion of process of acquisition and payment of compensation, the State takes possession of the property in normal circumstances. The culmination of an acquisition process in the payment of compensation, but also in taking over the actual physical is not 3 (2024) 10 SCC 533 27 possession of the land. If possession is not taken, acquisition is not complete. With the taking over of actual possession after the normal procedures of acquisition, the private holding is divested and the right, title and interest in the property, along with possession is vested in the State. Without final vesting, the State's, or its beneficiary's right, title and interest in the property is inconclusive and causes lot of difficulties. The obligation to conclude and complete the process of acquisition is also part of Article 300-A.

33.7.2. Section 16 of the Land Acquisition Act, 1894, Sections 4 and 5 of the Requisitioning and Acquisition of Immovable Property Act, 1952, Sections 37 and 38 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and Sections 3-D and 3-E of the National Highways Act, 1956, statutorily recognise this right of the acquirer.

33.7.3. This step of taking over of possession has been a matter of great judicial scrutiny and this Court has endeavoured to construe the relevant provisions in a way which ensures non- arbitrariness in this action of the acquirer [ In State of W.B. v. Vishnunarayan & Associates (P) Ltd., (2002) 4 SCC 134, this Court held that possession can be resumed by the acquirer only in a manner known to or recognised by law and it cannot resume possession otherwise than in due course of law. In Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 Supp (1) SCC 596, this Court held that though eminent domain is the highest and most exact idea of property remaining in the Government, or in the aggregate body of the people in their sovereign capacity, even then the right to take possession of a private property must be exercised in the manner directed by the Constitution and the laws of the State, since deprivation of property must take place after following the procedure of law and upon ensuring due process.] . For that matter, after taking over possession, the process of land acquisition concludes with the vesting of the land with the authority concerned. The culmination of an acquisition process by vesting has been a matter of great importance. On this aspect, the courts have given a large number of decisions as to the time, method and 28 manner by which vesting takes place [ In Girnar Traders (3) v. State of Maharashtra, (2011) 3 SCC 1 : (2011) 1 SCC (Civ) 578, this Court held that under the Land Acquisition Act, 1894, upon the payment of compensation and taking of possession of a land so acquired, the land is vested in the State free of encumbrances and the completion of such vesting of the land in the State amounts to the transfer of title from the owner to the State by a legal fiction. In P. Chinnanna v. State of A.P., (1994) 5 SCC 486 and DDA v. Reena Suri, (2016) 12 SCC 649 : (2017) 1 SCC (Civ) 781, this Court held that mere passing of award under the Land Acquisition Act, 1894 will not suffice to vest the land in the State since taking possession is of utmost importance. In Fruit & Vegetable Merchants Union v. Delhi Improvement Trust, 1956 SCC OnLine SC 37, this Court held that once the land is vested in the State, it is vested neither for a limited purpose nor for a limited duration. Further, in Union of India v. Tarsem Singh, (2019) 9 SCC 304 : (2019) 4 SCC (Civ) 364, this Court observed that the National Highways Act, 1956 has an object of reducing delay in the process of land acquisition in order to speedily implement projects pertaining to highways. It is in this context that this Court held that under Section 3-D of the National Highways Act, 1956, the land to be acquired vests in the Union upon the publication of a notification declaring the acquisition, which is done after the disposal of objections of the landowner, if any.]” (Emphasis supplied) The Apex Court holds that mere passing of an award under the Act would not suffice to vest the land in the State, since taking of possession is of utmost importance. Without final vesting, the State, or its beneficiary's right, title and interest in the property is inconclusive, causing lot of difficulties. Further, the State’s 29 obligation to duly conclude and complete the acquisition process also flows from Article 300-A of the Constitution.

#14. In the teeth of the aforesaid elucidation of law by the Apex Court, the petitioner’s claim that he is still in possession of the property to this day may carry some semblance of acceptance, as the respondent/State has not produced any documents evidencing lawfully taking possession of lands under Section 16 of the Act, by drawing up a panchanama or a mahazar.

#15. However, it is also pertinent to notice that, the petitioner too has failed to produce any documents on record to show that he continues to be in possession of the land as on this date. The documents that he relies on are, the orders of civil Courts in the aforesaid suits instituted in the years 2004 and 2011, revenue records of the subject property pertaining to the year 2011, a corrigendum dated 16-03-2000 indicating that his lands were dropped from acquisition proceedings and a RTI reply issued by the BDA stating that no sanction was given to the 3rd respondent for formation of a layout in Sy.No.28. In the absence of adequate 30 records from either side, it is not possible for this Court to arrive at a conclusive finding regarding possession of the property.

#16. Therefore, in view of the peculiar facts and circumstances of this case, I deem it appropriate to direct the respondents to undertake a joint inspection of the subject property to ascertain who is presently in possession of the property. If it is found that the petitioner is in possession, he would be entitled to the benefit of quashing the acquisition proceedings, as laid down by the Apex Court in the aforesaid judgments. ISSUE NO.2: Whether compensation can be paid to the power of attorney holder?

#17. In light of issue no.1 being answered in favour of the petitioner, issue no.2 does not merit any consideration at this stage. 31

#18. For the aforesaid reasons, the following: ORDER (i) The Writ Petition is disposed. (ii) Respondent Nos.1 and 2 are directed to carry out a joint inspection of the schedule property to ascertain who is presently in possession of the property. (iii) The said exercise shall be undertaken independently and without being influenced by the observations made by this Court during the course of the order. (iv) In the event, the petitioner is found to be in possession of the property, the acquisition notifications dated 25-03-1992 and 29-01-1996 qua the schedule land would stand lapsed, in light of the law as laid down by the Apex Court in the judgments quoted supra. (v) The aforesaid joint inspection shall be carried out by the respondent Nos.1 and 2 within a period of 8 weeks from the date of receipt of the copy of this order, after due notice to the petitioner. Ordered accordingly. 32 Pending I.A.s’ if any, also stand disposed, as a consequence. Sd/- (M.NAGAPRASANNA) JUDGE CT:MJ