SRI. M RAMU v. STATE OF KARNATAKA

(BY SRI. NATARAJA H T., ADVOCATE) AND:

1. STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT, URBAN DEVELOPMENT DEPARTMENT, M S BUILDING, BANGALORE-560001.

2. THE BANGALORE DEVELOPMENT AUTHORITY REPRESENTED BY ITS COMMISSIONER, SANKEY ROAD, KUMARA PARK, BANGALORE-560020.

3. THE SPECIAL LAND ACQUISITION OFFICER BANGALORE DEVELOPMENT AUTHORITY, SANKEY ROAD, BANGALORE-560020. (BY SRI. MANJUNATHA K., HCGP FOR R1, SRI. G.LAKSHMEESH RAO, ADVOCATE FOR R2 & R3.) …RESPONDENTS THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THAT, NOTIFICATION FOR FORMATION OF BANASHANKARI 6TH STAGE LAYOUT, WHILE PRELIMINARY NOTIFICATION DTD 07.11.2002 ISSUED BY THE R-2 VIDE ANNX-C AND THE FINAL NOTIFICATION DTD THE RESPONDENTS ISSUED BY - 3 - NC: 2024:KHC:9653 WP No. 1421 of 2021

09.09.2003 GAZETTE ON 10.09.2003, ISSUED BY THE R-2 VIDE ANNX-D NOTIFYING THE LANDS OF THE PETITIONERS AS LAPSED UNDER SECTION 27 OF BANGALORE DEVELOPMENT AUTHORITY ACT, 1976 IN SO FAR AS IT RELATES TO THE SCHEDULE PROPERTY ETC. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

1. The prayer made in this petition is for quashing of a notification issued under Section 17(1) of the Bangalore Development Authority Act (for short, “the Act”) dated

07.11.2022 and the declaration dated 09.09.2003 issued under Section 19 of the Act on the ground that the scheme had lapsed under Section 27 of the Act.

2. A prayer is also made for quashing of the award that was passed subsequently on 12.12.2003.

3. Learned counsel for the petitioners, at the very outset, submits that the land in question i.e., Sy.No.48/3A abuts the land in Sy.No.48/3B1 and the acquisition of the said land was the subject matter of W.P.No.9246/2021. He submits that this Court by order dated 18.08.2023 allowed - 4 - NC: 2024:KHC:9653 WP No. 1421 of 2021 the said writ petition and quashed the preliminary notification dated 07.11.2022 and the declaration dated

09.09.2003 insofar as it related to Sy.No.48/3B1 except insofar as the road that was formed in Sy.No.48/3B1. He submits that in view of the fact that the adjoining land was brought outside the purview of acquisition, the petitioners’ land would become a small island incapable of any use for formation of the layout.

4. Learned counsel also points out that as per the very sketch produced by the Bangalore Development Authority along with its counter, to the north in Sy.No.48/1, the photograph indicates that it is completely built up and to the south of Sy.No.48/3A, the photographs indicates that structures have been put up and, therefore, in this isolated island, it would be impossible the Bangalore Development Authority to form a layout.

5. Learned counsel for the Bangalore Development Authority, per contra, submits that Sy.No.48/3A is vested with the Bangalore Development Authority and even if it is - 5 - NC: 2024:KHC:9653 WP No. 1421 of 2021 assumed that the scheme had lapsed, the acquisition would still remain valid and the Bangalore Development Authority would still be entitled to put the land to some beneficial use.

6. He also submits that the Bangalore Development Authority is contemplating to file an appeal against the order passed by a Co-ordinate Bench of this Court in respect of Sy.No.48/3B1 and therefore, there is no merit in the arguments advanced by the petitioners.

7. This Court while disposing of W.P.No.9246/2021, which related to land in Sy.No.48/3B1, has observed as follows in paragraphs 6, 7 and 8: “6. Learned Senior Counsel submits that it is clear from the said directions issued by the Apex Court that acquisition thereof cannot be justified on the ground that small islands of acquired land could be used as a stand-alone park or playground in regard to a layout formed in a different unconnected lands. In that view of the matter, the learned Senior Counsel has taken this Court through the map submitted at the hands of the respondent - BDA and - 6 - NC: 2024:KHC:9653 WP No. 1421 of 2021 submits that it is clear from the map supplied by the BDA and the photographs furnished at the hands of the petitioner that all the lands surrounding the land in question including that of Sri M.Sheshappa have been left out of the acquisition proceedings. What remains is only 2 acres and 24 guntas or even lessor since a portion of the property belonging to the petitioner was utilised for the purpose of formation of road. Therefore, practically only about 1 acre 30 guntas of land may remain which belongs to the petitioner Sri M.Sheshappa Commissioner has opined that the same can be formed into a separate layout. This opinion of the Commissioner would be contrary to the law laid down by the Hon’ble Supreme Court in the case of BONDU RAMASWAMY. Learned Senior Counsel further submit in respect of neighbouring properties the BDA thought it fit to levy betterment charges and not acquire the land for formation of layout. Atleast three or four such property owners gave up their claim in respect of the land utilised for formation of road and accordingly their lands are left out of acquisition proceedings while levying and collecting betterment charges. Learned Senior Counsel submits that same benefit should have given to the petitioners and there is no reason why only a small portion of property measuring approximately 1 acre and 30 guntas are - 7 - NC: 2024:KHC:9653 WP No. 1421 of 2021 sought to be utilised for formation of a layout. Learned Senior Counsel submits that if directions are issued by this Court, the petitioner is more than willing to give up his claim regarding the property utilised for formation of road and the petitioner may be permitted to utilise the rest of the lands for beneficial use, as was done in the case of other neighbouring lands.

7. Per contra, learned counsel Sri K.Krishna appearing for the respondent - BDA submits that on a plain reading of the averments made in the writ petition it does not disclose as to how the change in the survey numbers of the property belonging to the petitioner and Sri M.Sheshappa has come about. Further is submitted that the case of Sri M.Sheshappa and others were considered on the same lines and the Commissioner had also earlier opined that the lands could not be dropped from the acquisition proceedings. Sufficient reasons are found in the order passed by the Commissioner. It is therefore sought to be submitted that writ petition cannot be maintained at the hands of the petitioner, since Sri M.Sheshappa and others had already approached this Court in respect of same property i.e., Sy.No.48/3B1. Insofar as the opinion of the Commissioner in the recent order dated 18.04.2023, the learned counsel would submit that details of all - 8 - NC: 2024:KHC:9653 WP No. 1421 of 2021 the neighbouring properties and the manner in which they were dealt with has been elaborately given in the order. The Commissioner has given acceptable reasons as to why the land in question cannot be dropped acquisition proceedings. Moreover, it is submitted that award has been passed in respect of the land in question and therefore at this point of time the land in question cannot be dropped from the acquisition proceedings.

8. Having heard the learned Senior Counsel for the petitioner, learned counsel for the respondent - BDA and having perused the petition papers, this Court finds that having regard to the law laid down by the Hon’ble Supreme Court in the case of BONDU RAMASWAMY, the opinion of the Commissioner in his order dated 18.04.2023 cannot be accepted. Having regard to the map submitted by the BDA and the photographs furnished at the hands of the petitioner, it is clear that all the neighbouring properties have been left out of the acquisition proceedings and what remains is two small pieces of property belonging the petitioner and Sri M.Sheshappa. The learned Senior Counsel appearing for the petitioner has reasonably clarified the position regarding the change in the survey number and therefore there cannot be any doubt in the mind of this Court regarding the ownership of the property - 9 - NC: 2024:KHC:9653 WP No. 1421 of 2021 in question standing in the name of the petitioner. The facts narrated in the order dated 18.04.2023 by the Commissioner also supports the submission of the learned Senior Counsel that the two properties are distinct and different and there cannot be any confusion about the land belonging to the petitioner and Sri M.Sheshappa and others. However, the opinion of the Commissioner that the two pieces of land which on paper measures about 2 acres and 24 guntas could be formed as a stand-alone layout, would be contrary to the law laid down by the Hon’ble Supreme Court in the case of BONDU RAMASWAMY. A layout which is required to be formed by the BDA should be a self contained layout. The layout should contain residential sites, commercial area, roads, civic amenities sites, parks, playground etc. The proposition of forming island layout in small pieces of property has been deprecated by the Hon’ble Apex Court. In that view of the matter, this Court would not hesitate to hold that the opinion of the Commissioner in his order dated 18.04.2023 would be contrary to the judgment of the Hon’ble Supreme Court in the case of BONDU RAMASWAMY. When it is clear that all the neighbouring properties surrounding the lands in question have not been utilised for formation of a layout, it would be impermissible for the BDA to form a separate layout in the land in question. The - 10 - NC: 2024:KHC:9653 WP No. 1421 of 2021 directions given by the Hon’ble Supreme Court in the case of BONDU RAMASWAMY more particularly clause(ii) of paragraph No.160 would apply on all fours to the facts and circumstances of this case.”

8. As could be seen from the above, this Court took note of the order dated 18.04.2023 passed by the Commissioner, in which, he had admitted that apart from the land belonging to Sheshappa (brother of the 1st petitioner) and who was the erstwhile owner of Sy.No.48/3A and the land of B.Vijaykumar, the petitioner therein, who was the owner of Sy.No.48/3B1, all other surrounding lands have been given up from the purview of acquisition.

9. The Co-ordinate Bench also rejected the contention urged by the Bangalore Development Authority that these two pieces of land which measured 2 acres 24 guntas could be formed as a stand alone layout, on the ground that it would be contrary to the decision of the Apex Court in the case of BONDU RAMASWAMY Vs. BANGALORE DEVELOPMENT AUTHORITY (2010) 7 SCC 129. This Court - 11 - NC: 2024:KHC:9653 WP No. 1421 of 2021 took a specific view that the layout could not be formed in 2 acres 24 guntas as the same would be contrary to the judgment rendered in Bondu Ramaswamy’s case, especially when it was clear that all the neighbouring lands had not been utilized for forming a layout and it would be improper to form a separate layout.

10. In my view, the reasoning of the Co-ordinate Bench in respect of abutting land bearing Sy.No.48/3B1 would also aptly apply to this petition land i.e., Sy.No.48/3A. In that view of the matter, the writ petition is allowed and the impugned notification dated 07.11.2002 issued under Section 17 of the Act and the declaration dated

09.09.2003 insofar as the petition schedule land i.e., Sy.No.48/3A and measuring 1 acre 16 guntas of Gubbalala Village, Uttarahalli Hobli, Bangalore South Taluk, are hereby quashed.

11. Learned counsel for the petitioners submits that the petitioners have not withdrawn the compensation stated to have been deposited by the Bangalore Development - 12 - NC: 2024:KHC:9653 WP No. 1421 of 2021 Authority in the Civil Court in respect of lands in question. In that view of the matter, the Bangalore Development Authority would be entitled to withdraw the amounts, if any, deposited before the Civil Court in respect of the petition schedule property. Sd/- JUDGE PKS List No.: 2 Sl No.: 15