The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN WRIT PETITON NO. 46916 OF 2014 CONNECTED WITH WRIT PETITON NO. 26836 OF 2015 CONNECTED WITH REGULAR FIRST APPEAL NO.257 OF 2020 IN WP NO.46916/2014 BETWEEN: 1 . SHAIK MOHAMMED S/O LATE MUNAVAR KHAN @ BAKSHI SAB, AGED ABOUT 65 YEARS, R/AT NO.412, 4TH CROSS, R. SONAPPA BLOCK, BEHIND CHURCH, BENSON TOWN POST, BANGALORE - 560 046. 2 . SMT. NASEEMUNNISA W/O LATE INAYATULLA KHAN, AGED ABOUT 58 YEARS, 3 . SHAZIA NIKHAT ASMA D/O LATE INAYATULLA KHAN, AGED ABOUT 35 YEARS, 2 & 3 ABOVE ARE R/AT NO.99, GROUND FLOOR, PEARL RESIDENCY, 2ND MAIN, VINAYAKA LAYOUT, BHOOPASANDRA, BANGALORE - 560 094. 2 4 . SMT. SAMEEN TAJ W/O LATE SARVAR, AGED ABOUT 39 YEARS, 5 . SMT. PARVEEN TAJ D/O LATE MOHAMMED YOUSUF, AGED ABOUT 37 YEARS, 4 & 5 ABOVE ARE R/AT NO.4, 2ND "F" MAIN, RMV II STAGE, BHOOPASANDRA NEW EXTENSION, SANJAYANAGAR, BANGALORE - 560 064. 6 . SMT. ZAREEN TAJ W/O LATE MOHAMMED SARVAR AGED ABOUT 58 YEARS, R/AT NO.5/1, 2ND "F" MAIN, RMV II STAGE, BHOOPASANDRA NEW EXTENSION, SANJAYANAGAR, BANGALORE - 560 064. 7 . AZEEZULLA KHAN S/O LATE MUNAVAR KHAN @ BAKSHI SAB, AGED ABOUT 55 YEARS, R/AT NO.5/1, 2ND "F" MAIN, RMV II STAGE, BHOOPASANDRA NEW EXTENSION, SANJAYANAGAR, BANGALORE - 560 064. 8 . SMT. HASINA KTAJ W/O UMMAR KHAN, AGED ABOUT 50 YEARS, R/AT 52/15, RAMASWAMY STREET, POLIYON TOPE, CHENNAI - 12, NOW COME TO BANGALORE. 9 . SMT. MUBEEN TAJ W/O ANSAR PASHA, AGED ABOUT 48 YEARS, R/AT BK MAIN ROAD, NEAR CANARA INSTITUTE, 3 HAROHALLI, KANAKAPURA TALUK, RAMANAGARAM DISTRICT, NOW COME TO BANGALORE. 10 . ILYAS KHAN S/O LATE MUNAVAR KHAN @ BAKSHI SAB, AGED ABOUT 55 YEARS, R/AT NO.5, 2ND "F" MAIN, RMV II STAGE, BHOOPASANDRA NEW EXTENSION, SANJAYANAGAR, BANGALORE - 560 064. 11 . SMT. JABEEN TAJ W/O ISMAIL KHAN, AGED ABOUT 43 YEARS, R/A CHINNASANDRA POST, CHINTAMANI TALUK, CHIKKABALLAPUR DISTRICT. 12 . SMT. KAUSAR TAJ W/O MOHAMMED KHAN, AGED ABOUT 41 YEARS, R/AT NO.1, 12 COLES ROAD, FRAZER TOWN, BANGALORE - 560 005. ALL THE PETITIONERS 1 TO 12 ABOVE ARE REPRESENTED BY THEIR SPECIAL POWER OF ATTORNEY HOLDER. MRS. SAMEENA AZEEM, D/O SHRI B. K. NAIMULLA KHAN, AGED ABOUT 48 YEARS, R/AT NO.3, 2ND "F" MAIN, 60 FEET ROAD, BHOOPASANDRA EXTENSION, NEW SANJAYANAGAR, BANGALORE - 560 094. 13 . AMJAD KHAN S/O LATE INAYATULLA KHAN, AGED ABOUT 37 YEARS, P.O BOX 86411, DUBAI , UAE, REPRESENTED BY HIS 4 SPECIAL POWER OF ATTORNEY HOLDER IMTIAZ KHAN, S/O LATE INAYATULLA KHAN, THE PETITIONER NO.14 HEREIN. 14 . IMTIAZ KHAN S/O LATE INAYATULLA KHAN, AGED ABOUT 33 YEARS, R/AT NO.99, GROUND FLOOR, PEARL RESIDENCY, 2ND MAIN, VINAYAKA LAYOUT, BHOOPASANDRA, BANGALORE - 560 094. 15 . MOHAMMED GHOUSE PASHA S/O LATE MOHAMMED YOUSUF, AGED ABOUT 48 YEARS, ELECTRICAL ENGINEER, NADGE NO.10841, SANDI OGER LTD., AL QUASIS, P.O BOX NO.1449, RIYADH, KINGDOM OF SAUDI ARABIA, REPRESENTED BY MOHAMMED NAYAZ, S/O LATE MOHAMMED YOUSUF, THE PETTITONER NO.16 HEREIN. 16 . MOHAMMED NAYAZ S/O LATE MOAHAMMED YOUSUF, AGED ABOUT 32 YEARS, R/AT NO.4, 2ND "F" MAIN, RMV II STAGE, BHOOPASANDRA NEW EXTENSION, SANJAYANAGAR, BANGALORE - 560 064. (BY SRI. M. V. VEDACHALA, ADVOCATE) AND: ...PETITIONERS 1 . THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT AUTHORITY, M S BUILDING, BANGALORE - 560 001. 5 2 . THE BANGALORE DEVELOPMENT AUTHORITY T. CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE - 560 020. BY ITS COMMISSIONER. 3 . THE SPECIAL LAND ACQUISTION OFFICER THE BANGALORE DEVELOPMENT AUTHROITY, T. CHOWDAIAH ROAD, KUMAR PARK WEST, BANGALORE - 560 020. 4. BHARAT ELECTRONICS LTD., (A GOVT. OF INDIA ENTERPRISES, MINISTRY OF DEFENCE), JALAHALLI POST, BENGALURU - 560 013. …RESPONDENTS (BY SRI. R. A. MACHAKANUR, HCGP FOR R1; SRI. R. S. RAVI, SENIOR COUNSEL FOR SRI. SHARATH GOWDA G B., ADVOCATE FOR R4; SRI. AJAY KUMAR M., ADVOCATE FOR R2 & R3) TO OF PRAYING PURSUANT THIS WP IS FILED UNDER ARTICLE 226 OF THE INIDA CONSTITUTION DECLARE THAT THE ACQUISITION PROCEEDINGS INITIATED BY THE RESPONDENTS IN RESPECT OF THE 'SCHEDULE NOTIFICATION PROPERTY' DATED:2.6.1978 & PUBLISHED IN THE KARNATAKA GAZETTE DATED:31.8.1978 THE NOTIFICATION DATED:16.1.1989 & PUBLISHED IN THE KARNATAKA GAZETTED PART-III-1 DATED:2.2.1989 ANN-B, HAS LAPSED IN VIEW OF SEC.24(2) OF THE 'RIGHT TO FAIR COMPENSATION & TRANSPARENCY IN LAND ACQUISITION, REHABILITATION & RESETTLEMENT ACT [30/13] & ALSO ON THE GROUND OF ABANDONMENT OF THE SCHEME. PART-:III-3 ANN-A THE TO IN & IN WP NO. 26836/2015 BETWEEN: 1. G.M. VENKATARAMANAPPA S/O LATE CHIKKAMUNIYAPPA, SINCE DEAD REPRESENTED BY HIS LRS 6 1(a) SRI. G. V. ANAND W/O LATE G. M. VENKATARAMANAPPA, AGED ABOUT 56 YEARS, 1(b) SMT. MALA W/O LATE G. V. GOPAL AGED ABOUT 48 YEARS, 1(c) SRI. NIDHI S/O LATE G. V. GOPAL AGED ABOUT 19 YEARS, 1(d) SRI. G. V. BALAJI S/O LATE G. M. VENKATARAMANAPPA AGED ABOUT 52 YEARS, 1(e) SRI. G. V. SRINIVAS S/O LATE G. M. VENKATARAMANAPPA AGED ABOUT 50 YEARS, ALL THE ABOVE 1 TO 5 ARE R/AT NO.303, ARYAN BASIL APTS., V. NAGENAHALLI MAIN ROAD, GUDDADAHALLI, R.T. NAGAR POST, BANGALORE - 560 032. 1(f) SMT. G. V. MANJULA WIFE OF M. SRINIVASA AGED ABOUT 48 YEARS, R/AT: NO.35/5, 3RD CROSS, B MAIN, SOMESHWARA TEMPLE ROAD, BTM 1ST STAGE, OLD MADIWALA, BANGALORE - 560 068. 1(g) SMT. G.V. SUDHA RANI WIFE OF SRINIVASA V AGED ABOUT 46 YEARS, R/AT NO.33/1, VENKATAPPA BUILDING, SARAKKI GARDEN, 35TH MAIN, 6TH CROSS, J. P. NAGAR, 6TH PHASE, BANGALORE - 560 078. ...PETITIONERS 7 (BY SRI. CHAITANYA HEGDE, ADVOCATE FOR SRI. RAVISHANKAR R.H., ADVOCATE) AND: 1 . 2 . 3 . THE STATE OF KARNATAKA DEPARTMENT OF URBAN DEVELOPMENT, AUTHORITY, M.S.BUILDING, BANGALORE - 560 001. THE BANGALORE DEVELOPMENT AUTHORITY T.CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE - 560 020, BY ITS COMMISSIONER. THE SPECIAL LAND ACQUISITION OFFICER THE BANGALORE DEVELOPMENT AUTHORITY, T.CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE - 560 020. 4 . BHARAT ELECTRONICS LTD., JALAHALLI POST, BANGALORE - 560 013. REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR. (BY SRI. R. A. MACHAKANUR, HCGP FOR R1; SRI. SACHIN B S., ADVOCATE FOR R2 & R3; SRI. R. S. RAVI, SENIOR COUNSEL FOR SRI. G. B. SHARATH GOWDA, ADVOCATE FOR R4) …RESPONDENTS OF TO PRAYING PURSUANT THIS W.P IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION TO INDIA DECLARE THAT THE ACQUISITION PROCEEDING INITIATED BY THE RESPONDENTS IN RESPECT OF THE 'SCHEDULE NOTIFICATION PROPERTY' DATED:02.06.1978 AND PUBLISHED IN THE KARANATAKA GAZETTE DTD31.08.1978 IN PART III-3, ANNEXURE-A AND THE NOTIFICATION DATED:16/01/1989 AND PUBLISHED IN THE KARNATAKA GAZETEE PART III-1 DTD02.02.1989, ANNEXURE-B HAS LAPSED IN VIEW OF SECTION 24(2) OF THE "RIGHT TO FAIR COMPENSATION AND TRANSPARENCY IN LAND ACQUISITION, REHABILITATION AND RESETTLEMNT ACT (30 OF 2013) AND ALSO IN THE GROUND OF ABANDONMENT OF THE SCHEME. THE 8 IN RFA NO.257/2020 BETWEEN:
Legal Reasoning
the LA Act, 1894. However, this Court in its final order dated 17.01.2013 (Annexure-F) passed in the said petitions, at Para 6, held that the fact that the notification dated 05.01.2010 (Annexure-E) was issued de-notifying three items of lands said to have been taken possession along with the lands of petitioners therein. Same is the situation in respect of the Schedule Property in this regard. 15 7. It is also contended that, as observed in Para 6 of Annexure-"F", though the Preliminary and the Final notifications would mainly state that the acquisition is for the purpose of extension of HBR Layout, it is indeed for the formation of outer ring road and ring road which has been formed and the Schedule Property has not been utilized for the purpose. That apart, all the lands surrounding the Schedule Property having been dropped from the acquisition proceeding, the Schedule Property has become an island/isolated pocket without having even the approach road. Retaining the Schedule Property under acquisition serves no useful purpose for the respondents. Under the above facts and circumstances of the case, indisputably, even after 36 years of initiation of the acquisition proceeding, the physical possession of the Schedule Property has not been taken and has not been utilized for the proposed or for any other purpose. The BDA has abandoned the HBR III Stage Scheme in respect of the Schedule Property and the scheme has automatically lapsed entitling the petitioners to exercise their full ownership rights over the property. 8. It is contended that in view of commencement of new Land Acquisition Act, 2013, which has come into force 16 w.e.f. 01.01.2014, as per Section 24 (2) of the LA Act 2013, the acquisition process under the Old Act has been lapsed. 9. It is further contended that the acquisition proceedings initiated under the Land Acquisition Act, 1894, where an award under Section 11 has been made five years or more prior to commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid to the concerned in accordance with Section 31 of the LA Act 1984, the physical possession of the Schedule Property has not been taken by the respondents on the date of the LA Act 2013 coming in to force, till day the Schedule Property remains unutilized for the purpose for which it was sought to be acquired or for any other purpose. Therefore, all the requirements stated under Section 24 (2) of the LA Act 2013 stand satisfied to hold that the acquisition proceedings initiated in respect of the Schedule Property by the respondents for the "Hennur Bellary Road III Stage Scheme has lapsed w.e.f. 01.01.2014 by operation of law on coming in to force of the LA Act 2013. 10. It is contended that the Petitioner had filed the above writ petition to declare that the acquisition proceedings initiated by the respondents in respect of the schedule 17 property to the writ petition has lapsed and for other reliefs. Subsequent to filing of the writ petition, it has come to the knowledge of the petitioner from the records obtained by the petitioner from the Bangalore Development Authority (BDA) under the Right to Information Act and also from the facts and affidavits submitted before the Division Bench of this Court, in the case of ANTHONY REDDY VS. STATE OF KARNATAKA reported in ILR 2020 KAR 1348, where the Division Bench of this Court had examined the records pertaining to the acquisition of the land in respect of the challenge made to the notifications in respect of the same notifications challenged in this writ petition. The notifications in the writ appeal pertain to acquisition of land for scheme known as HBR 3rd Stage Layout. The admitted facts are that as per the preliminary notification, the BDA had proposed to acquire 982 acres 6 guntas of land under the preliminary notification and thereafter the BDA dropped 548.14 acres from the acquisition proceedings only in respect of 433.32 acres was notified for acquisition under the final notification and 97.07 acres and an award has been passed. The Division Bench held that the scheme has not been implemented and based on the records produced by the BDA and the affidavits filed by the officials of BDA held that the scheme was lapsed. 18 It is further held that the respondent BDA has produced resolution dated 18.11.2000 which was produced in the writ appeals which was considered by the Division Bench and allowed the appeal. 11. It is further contended that the scheme in question pertaining to the notification has been lapsed. The BDA has passed a resolution to withdraw the acquisition proceedings. Apart from that, the BDA subsequent to the issue of the final notification have although withdrawn from the acquisition proceedings and had also passed a resolution to withdraw from the acquisition proceedings has proceeded to execute an Exchange Deed dated 17.10.2014 (Annexure- R6) purportedly exchanging the petitioners' property with that of the Bharat Electronics Limited (BEL). The petitioners submit that the Deed of Exchange said to have been executed by the BDA is prima-facie illegal and void ab initio. The BDA has not completed the acquisition proceedings prior to execution of the Deed of Exchange and has not taken possession of the property of the petitioners. 12. It is contended in the pleading of the BDA 1that, on 08.07.1999, the BDA is purported to have taken possession of the petitioners' property and has produced a 19 mahazar (Annexure R-2) to support that contention. It is very clear from the Mahazar that the BDA has not taken possession of the property in view of the following facts as it is in a cyclo- styled form containing the signatures of 6 persons, neither their names nor addresses are shown in the mahazar and taking possession of the land under such a mahazar, cannot be accepted. 13. It is contended that the mahazar does not disclose from whom the possession has been taken and if the identity of the signatures to the mahazar is not ascertainable, the version of the BDA taking possession cannot be accepted as held by this Hon'ble Court in the case of MEENAKSHI THIMMAIAH AND OTHERS VS. STATE OF KARNATAKA AND ANOTHER reported in ILR 2010 KAR 62. 14. It is further held that in the said case that the signatures of the witnesses, accused to have been taken on 22.12.1989 by the Revenue Inspector, but the signature of the Revenue Inspector was affixed on 29.11.1989 (Annexure R2). The conflicting dates clearly show that the Mahazar has been prepared in the office of the BDA rather than on the land. Hence, it is completely untenable and void, the Mahazar also disclosed the owner of the land was not present at that 20 time, when the Mahazar was drawn, admittedly, the possession of the property was taken from the petitioners. 15. It is further held, that it is impossible for the BDA for having taken possession of the schedule property for various reasons assigned in the said judgment, that even according to the BDA, the notification under section 16 (2) of Land Acquisition Act, perperted to be taken possession was issued on 08.07.2009 and it is admitted that on 05.01.2010, the land in Sy.No.6/2A measuring 22 guntas, Sy.No.6/2B measuring 11 guntas and Sy.No.7 measuring 29 guntas, were denotified under section 48 of the Land Acquisition Act. 16. As a consequential to the denotification which were lands surrounding the lands of the petitioner, the only access available to reach the land of the petitioner have been denotified. The lands were reverted back to the owners and in the case of K.G. Srinivasa and others Vs State of Karnataka and others – W.P.No.4505/2010, it was held that the denotification having been published in the Gazette would have its effect of declaring that the land duly denotified, since possession was not taken on the same. It is further held, if the denotification was ordered, under section 48 of the Act, it would be pre-supposes that the possession 21 was never taken and the land was not vested with the State. It is only that, the question of denotification having been published in the Official Gazzette would have its effect declaring that land has been duly denotified, since the possession was not taken on the same. 17. It is further contended that subsequent to the denotification dated 05.01.2010 in respect of the said lands, which prevented the access to the property to the petitioner had made an allotment in favour of the BEL Company vide letter dated 1.8.2014. Thereafter the BDA on 10.9.2014 made a request and noted that in view of land bearing No.62/A, 62/B and 7B being denotified, BDA had to request to reacquire 60 feet road from the land denotified, to have access to the petitioner's land or alternatively allot alternative land. The notice available in the BDA dated 12.04.2017, in spite of the fact, the BDA clearly observed, there was no access to the land of the petitioner. The BDA executed exchange deed in favour of BEL and falsely stated, possession was handed over to BEL by the BDA. This is only illegal and contrary to the fact and law. The BDA misrepresented in the document and handed over the possession to the BEL, where it was impossible for the BDA to hand over the same to the 22 BEL, as there was no access of land to the petitioner. The said document is produced at Annexure-G. 18. It is further contended that the BEL after execution of deed of exchange, became aware that BDA had not provided any approach road. The petitioner's land could not have been used by the BEL and consequently BEL wrote letter to the BDA on 18.03.2017, requesting to allot alternative land to them. The BDA Vide letter dated 14.06.2018 resolved to allot the alternative land in Sy.No.9/4, measuring 1 acre 10 guntas by the order of the BDA Commissioner on 05.06.2018 and the sketch of the allotment land to the BEL also enclosed. The BDA also produced survey report on 16.07.2018. Thereafter, the BDA allotted alternative land to the BEL on 14.12.2018 (Annexure-L). The same was acknowledge by the BEL Company on 19.12.2018 (Annexure-M). However, BDA vide its letter dated 26.02.2018 reaffirmed demand made by the BDA and the survey sketch dated 16.07.2018 (Annexure-K) issued by BDA were produced herein. Later, BDA letter dated 14.12.2018 (Annexure-L) allotted 5079.6 square meter to BEL and demanded ₹4,10,906/- towards excess land and registration charges. For that, the BEL requested for waiver of the 23 additional charges, which have been allotted at Kempegowda Layout. 19. It is further contended that the BEL after execution of the exchange deed, filed the suit in OS.No.1870/2020 for relief of perpetual injunction. Though, it was granted ex-parte, later it was vacated. The trial court
Arguments
1 . SRI. SHAIK MOHAMMED S/O LATE MUNAVAR KHAN, AGED ABOUT 69 YEARS, R/A NO.412, 4TH CROSS, R. SONNAPPA BLOCK, BENSON TOWN, BENGALURU - 560 064. 2 . SRI. AZEEZULLA KHAN S/O LATE MUNAVAR KHAN, AGED ABOUT 59 YEARS, R/A NO.5/1, 2ND 'F' MAIN, RMV II STAGE, BHOOPASANDRA, NEW EXTENSION, SANJAY NAGAR, BENGALURU - 560 064. 3 . SRI. ILYAS KHAN S/O LATE MUNAVAR KHAN, AGED ABOUT 59 YEARS, R/A NO.5/1, 2ND 'F' MAIN, RMV II STAGE, BHOOPASANDRA, NEW EXTENSION, SANJAY NAGAR, BENGALURU - 560 064. 4 . MRS. SAMEENA AZEEM D/O B. K. NAYEEMULLA KHAN, AGED ABOUT 52 YEARS, R/A NO.3, 2ND 'F' MAIN, 60 FEET ROAD, BHOOPASANDRA, NEW EXTENSION, SANJAY NAGAR, BENGALURU - 560 064. 5 . SRI. IMTIAZ KHAN S/O LATE INAYATULLA KHAN, AGED ABOUT 37 YEARS, R/A NO.99, GROUND FLOOR, PEARLY RESIDENCY, 2ND MAIN, VINAYAKA LAYOUT, BHOOPASANDRA, BENGALURU - 560 094. 9 6 . SRI. MOHAMMED NAYAZ S/O LATE MOHAMMED YOUSUF, AGED ABOUT 36 YEARS, R/A NO.4, 2ND 'F' MAIN, RMV II STAGE, BHOOPASANDRA, NEW EXTENSION, SANJAY NAGAR, BENGALURU - 560 064. NOW REPRESENTED BY APPELLANT NO.4. (BY SRI. M. V. VEDACHALA, ADVOCATE) AND: BHARAT ELECTRONICS LTD., (A GOVT. OF INDIA ENTERPRISES) JALAHALLI POST, BENGALURU - 560 013. REPRESENTED BY ITS ADDL. GENERAL MANAGER (ES), MR. M. SRINIVAS, S/O N. K. MANJAPPA, AGED ABOUT 58 YEARS. ...APPELLANTS (BY SRI. R. S. RAVI, SENIOR COUNSEL FOR SRI. SHARATH GOWDA G B., ADVOCATE) …RESPONDENT THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:27.11.2018 PASSED IN OS.NO.1870/2015 ON THE FILE OF THE XX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT FOR PERPETUAL INJUNCTION. THESE PETITIONS AND APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDER ON 12.12.2024 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: 10 RESERVED FOR ORDERS ON: 12.12.2024 PRONOUNCED ON : 28.02.2025 CORAM: HON'BLE MR. JUSTICE K.NATARAJAN CAV ORDER Writ Petition No.46916/2024 is filed by the petitioner - land owners under Article 226 of Constitution of India for issue of writ of mandamus directing Bangalore Development Authority (BDA) to cancel exchange deed in view of BDA allotting and transferring alternative land to M/s. BEL Company (proposed impleading applicant) and to declare that anything done or caused to be done by the respondents in respect of the schedule property on and from 01.01.2014, the date on which the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act (30 of 2013) came into force, is without jurisdiction, illegal and void and same does not bind the petitioners. 2. The case of the petitioner is that the petitioner is the owner and is in possession of the land measuring 1 Acre and 9 Guntas land in Sy.No.8/2 of Guddadahalli village, Kasaba Hobli, Bangalore North Taluk, belonged to Smt. Aasiyabi, (D/o. late Abdul Gaffar Sab and widow of late 11 Munavar Khan Bakshi Sab) having purchased the same for valid consideration from its earlier owner Shri M.G.S. Raghu, S/o. Ganapathi Naik under the sale deed dated 10.11.1948. Out of this, an extent of 51/2 Guntas was acquired in the year 1965 itself for forming the Bangalore-Salem Railway line. On such acquisition, the extent acquired for the railway was numbered as Sy. No.8/2B and the remaining extent of land measuring 1 acre 3½ guntas of land was numbered as Sy. No.8/2A. It is further contended that late Smt. Aasiyabi had 4 sons namely the Petitioners Nos. 1, 7 & 10 and Inayatulla Khan (the deceased husband of Petitioner No.2 and the father of Petitioners Nos. 3, 13 & 14) and 6 daughters. All the petitioners have jointly succeeded to the estate of Smt. Aasiyabi after her death on 08.07.2000. 3. It is further stated that Preliminary notification dated 02.06.1978 (Annexure-A) was issued totally for 982 Acres and 6 Guntas of land situated in 6 villages of Bangalore North Taluk, including the lands in Guddadahalli Village, were proposed to be acquired for the formation of layout called "Scheme between Hennur Road and Bangalore Bellary Road III Stage" (herein after referred to as 'HBR III Stage'). In the Preliminary Notification, the name of Smt. Aasiyabi found 12 place at Sl. No.448 and her land is shown as land bearing Sy. No. 8/2 measuring 1-09 acres. Eleven years thereafter, the final notification issued under gazette dated 02.02.1989 (Annexure-B) was issued and in the said Final notification, the Scheme for which the lands were proposed to be acquired was mentioned as for formation of layout called HBR III Stage. Smt. Aasiyabi's land remained under acquisition even in the Final notification and her name is found at Sl. No. 213 therein again showing her land as bearing Sy. No.8/2 measuring 1-09 acres. It is further contended that during the period between the Preliminary notification and the Final notification, out of 982 Acres and 6 Guntas of land proposed to be acquired under the Preliminary Notification, 548 Acres and 14 Guntas of lands were dropped from acquisition and the Final notification was issued for only 433 Acres and 32 Guntas. 4. It is further contended that no notice of any proceeding under the Land Acquisition Act, 1894 (hereafter referred to as the 'LA Act 1894') was received by Smt. Aasiyabi in respect of the Schedule Property. The possession of the Schedule Property also continued to be with Smt. Aasiyabi till her death and thereafter, the petitioners are in 13 possession of the same. After the death of Smt. Aasiyabi, the petitioners have learnt that an award' dated. 27.10.1989 under Section 11 of the LA Act 1894 was passed in respect of the Schedule Property along with other lands. BDA had published a Notification dated 16.07.1990 under Section 16(2) of the LA Act, 1894 claiming to have taken possession of 45 pieces of lands, including the Schedule Property. Pursuant to the aforesaid acquisition proceeding for HBR III Stage scheme, the said notification was published in the Karnataka Gazette dated 30.01.1992 (Annexure-D). The respondents are said to have taken possession of the Schedule Property on 29.11.1989. However, factually, there was no taking of physical possession of those lands and there is no vesting of the lands mentioned therein, including the Schedule Property, in the Government. 5. It is further alleged that Notification No.UDD/146/MNX/2008 dated 05.01.2010 (Annexure-E) was issued under Section 48 of the LA Act 1894 and three items of lands in Sy. Nos 6/2, 6/2B & 7 of Guddadahalli village were withdrawn from acquisition by the State Government. The State Government could not have exercised its power under Section 48 of the LA Act, 1894 in respect of these lands. If 14 the contents of Annexure "D" was true, the physical possession of the lands mentioned is Annexure "D" were factually not taken to make it to vest in the State Government and that possession of the Schedule property continued to be with Smt. Aasiyabi and after her death with the petitioners. 6. It is also contended that in Annexure "D", the land in Sy. No.9 of Guddadahalli village adjacent to the Schedule Property was also shown to have been taken possession along with the Schedule Property on the same day, i.e. on 29.11.1989. The land owners of the said Sy. No. 9 filed Writ Petition Nos.7271-7272/2011 before this Court seeking quashing of the preliminary and the final notifications in respect of their land claiming that the same have lapsed. In the said writ petitions, the respondents contended that the possession of the land was already taken as per Section 16 of
Decision
passed the judgment, subject to the result of the writ petition. The RFA was also filed before this court, which is pending. It is further contended that the BDA has thereafter sent allotment letter dated 18.07.2018 has measured the allotted land in Survey No.9/4 and 10 of Sulikere village at Kempegowda layout measuring 5079.65 square meters. The petitioner further submits that the BDA has taken place behind back, without due process of law. 20. Subsequently filed a writ petition to the pendency of the writ petition, BDA after denotification of surrounded lands. Thereafter, with a view to accommodate BEL even though they are fully aware entire land was locked and after lapse of scheme, they proposed to allot the alternative land to the BEL and the BDA has not completed the acquisition and not taken the possession, but made erroneous allotment in favour of the BEL. It is further contended that in view of the 24 allotting alternate land to the BEL now become imperative for BDA to cancel the deed of exchange, which was allotted to BEL. Hence, prayed for allowing the petition. 21. The petitioner in W.P.Nos.26836 and 23837/2015 was also filed petition for quashing Notification to declare the official proceedings, initiated by the respondent in respect of scheduled property vide notification dated 2.6.1978 (Annexure-A) published Karnataka Gazette, has lapsed in view of section 24 (2) of Land Acquisition Act, which came into force and also on the ground of abandonment of this scheme, to declare that anything done or caused to be done by the respondent, in respect of scheduled property, on and from 1.1.2014, the date on which the New Land Acquisition Act came into force, is without jurisdiction, illegal and void and the same does not bind the petitioner. Consequently, the petitioner is entitled for the rights of scheduled property as its owner from 1.1.2014, the date on which the New Land Acquisition Act came into force and to pass any other relief deemed fit and proper, in respect of schedule property measuring 10 guntas of land in Sy.No.8/1 of Guddadahalli village, Kasaba hobli, Bengaluru. 25 22. The facts of the case in this petition is also similar to that of the facts of the case and the grounds mentioned by the petitioner in W.P.No.46916/2014. The said petition is pertaining to the adjacent land. The land bearing Sy.No.8/1 of the scheduled property measuring 10 guntas have been sold by Zairabi in favour of one Muniyamma on 27.1.1934. The said Muniyamma sold the property in favour of HM Muthappa on 28.9.1965. The said Muthappa bequeathed the property to one Rajamma on 2.2.1966 (Annexure-C). The said Rajamma got entered all the revenue records in her name and on 02.6.1978 a preliminary notification (Annexure-A) issued by the BDA for acquisition of 982 acres and 6 guntas of land in six villages for the purpose of scheme between Hennur road and Ballari Road, 3rd stage (hereinafter referred to as "HBR third stage" including the petitioner’s land). On 02.02.1989 (Annexure-B) a final notification issued by the BDA for 433 acres and 32 guntas of land while dropping 548 guntas of land. On 27.8.1989 an award under section 11 of the old Land Acquisition Act was passed but no notice was issued to the Rajamma. On 16.7.1991 (Annexure-F) notification under section 16(2) of the Land Acquisition Act was issued claiming to be taken possession of 45 pieces of land. On 05.01.2010 (Annexure-G) a notification under Section 48 of the Land 26 Acquisition Act issued for withdrawing the land in Sy.No.6/2, 6/2B and 7 as the possession of the land was not taken. On 17.1.2013 (Annexure-H) an order was passed by the High Court in W.P.No.7271, 7272 of 2011 in respect of survey No.9 of Guddadahalli Village which is adjacent land of the petitioner, as the possession of the land was not taken as per the notification dated 05.01.2010 (Annexure-G). On 01.01.2014, the new Land Acquisition Act, came into force. 23. The petitioner has contended that the adjacent lands were already denotified by the BDA and the scheme of extending the HBR 3rd stage was lapsed. Though preliminary notification was issued for huge extent of land subsequently final notification was issued, only for half of the land and finally the award has been passed only for 97 acres of the land and that they have not formed any sites in HBR layout. Finally, the adjacent land, as well as surrounding land has been denotified by the BDA. Such being the case, knowing fully under the guise of taking over the possession an exchange deed has been entered between the BDA and BEL by giving the land of petitioner to BEL Company to an extent of 10 guntas of land. The possession was not taken by the BDA and this scheme was lapsed. Till date the property has 27 remained un-utilised even after 36 years of initiation of proceedings. The physical possession of the property is not being taken and not utilized. The scheme was automatically lapsed. The petitioner is entitled for full right of owners, over the property. Hence, prayed for allowing the petition. 24. This petitioner also had taken similar contention for relying upon the judgment of the Division Bench and also contented that none of the petitioners has given land to the BEL Company by an exchange. But no suit has been filed by the BEL Company against these petitioners. Hence, prayed for allowing the petition. 25. Having heard the arguments and perused the records. 26. In W. P. No.46916/2014, respondent Nos.2 and 3 have filed statement of objections contending that the land in survey No.8/2 measuring an extent of 1 acre 9 guntas was notified for acquisition for the formation of HBR 3rd stage layout. Preliminary notification dated 02.08.1978 (Annexure- A) was issued and published in the Gazette dated 31.08.1978. Final notification was issued and published in the Gazette dated 02.02.1989 (Annexure-B). Award was passed on 27.10.1989 to an extent of 1 acre 31/2 of guntas. The 28 award was approved by the Deputy Commissioner BDA on 15.11.1989. The possession of the land was taken on 29.11.1989. After taking possession of the land, it was handed over to the Engineering section of the BDA on 29.11.1989. The fact of taking possession of the land is notified in the Gazette dated 30.01.1992 (Annexure-D) under section 16(2) LA Act. Thus, the land measuring 1 acre 3/½ guntas of land in survey No.8/2 of Guddadahalli village, Kasaba Hobli, Bangalore North Taluk stood vest with the BDA who became the lawful owner in possession of the same. The compensation amount is deposited in the civil court under section 30 and 31 of the LA, Act. 27. It is further contended that survey No.8/2 has been sub divided into survey No.8/2A measuring 1 acre 3½ guntas and survey No.8/2B measuring 5½ guntas. The extent of 5½ guntas of survey No. 8/2B had been utilized for forming the Bangalore Salem Railway line by the Railway Department. An extent of 1 acre 9.5 guntas of land belonging to the M/s. BEL Company, was utilized by the BDA for the formation of under pass road at Kuvempu circle Ring road. The BDA in lieu of utilization of M/s. BEL Company land, allotted survey No. 8/1 measuring 05.25 guntas and 1 acre 29 03.50 guntas of land in survey 8/2A in exchange to M/s. BEL Company land as an alternate land. M/s. BEL Company ever since from the date of taking possession of the land is in possession of the said land as an absolute owner of the same and they are the proper and necessary party to this writ petition. The lands surrounding the survey No.8/2B were de notified and hence, there is no proper approach road to survey No 8/2B and hence, it is not developed. M/s. BEL Company has been requesting the BDA to form an approach road to the survey No.8/28 and the said request is under consideration of the BDA. It is further contended that the scheme lapsed under section 27 of the BDA Act and under section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is not tenable, in view of the fact that the petitioners land has been acquired and allotted as alternate land to M/s. BEL Company in exchange for utilization of its land for the formation of under pass road near Kuvempu circle of the ring road. Therefore, all the contentions to not available to the petitioners. Hence, prayed for dismissing the petition. 30 28. Respondent No.4 has also filed statement of objections contending that the land of M/s. BEL company has been utilised by the BDA for formation of under pass of Outer Ring Road and has exchanged the land of the said land. The land of the petitioners is acquired under the preliminary notification, and on issuance of final notification, award has been passed. The land was vested in the government and the same was handed over to the BDA and then the BDA under exchange deed handed over the said survey number of the petition schedule property to the BEL Company by the registered exchange deed dated 17.10.2014 (Annexure R6). Subsequent to the same, the land has been handed over to the BEL Company. Thereafter, for the purpose of putting up compound wall, tender was issued to M/s.RK Builders. When they tried to put up construction, the petitioners along with surrounding land owners stopped working and a complaint was filed to the police. The police directed them to file civil suit. Accordingly, respondent No.4 filed a suit seeking permanent injunction which is pending in civil court. The lands of the petitioners were already acquired by the BDA and by way of exchange deed, handed over the same to respondent No.4 as the land of respondent No.4 was utilised by the BDA and they have taken possession. Such being the 31 case, the petitioners have no right or claim over the property of ownership. However, the contention of the petitioners that the claim was lapsed and on commencement of new Land Acquisition Act, the petitioners shall be declared as owner of the land, cannot be acceptable. Hence, prayed for dismissing the petitions. 29. In Writ Petition No.26836/2015, respondent Nos.2 and 3 said to have filed similar objections contending that the land has been acquired under the preliminary notification and final notification and the land has been vested with the BDA. Subsequently, under exchange deed, handed over to BEL Company. The land acquisition was completed a long back. There is delay of 25 years in challenging the acquisition proceedings and therefore, the above writ petition is liable to be dismissed on the ground of delay and laches. 30. It is further denied that the petitioners' land were utilised for formation of ring road. Hence, denotifying the acquisition proceedings is not correct. Actually, the land was acquired for the purpose of formation of HBR Layout 3rd Stage. After acquisition of land, notice has been sent to the petitioners and award has been passed and thereafter 32 possession of the land was taken under Section 16(2) of the LA Act. Possession of the land was handed over to engineering section of BDA. Therefore, the new LA Act is not applicable to the case on hand as it is applicable only to the land that was acquired under the old LA Act. Hence, prayed for dismissing the petition. 31. The respondent-BEL Company also filed similar objection that was filed in the connected writ petition. 32. Having heard the arguments of learned counsel for the parties, perused the records. 33. The points that arise for consideration are: (i) Whether the petitioners make out a case that the acquisition of land for the scheme of HBR Layout 3rd stage is lapsed ? (ii) Whether the land of the petitioners is not utilised for the scheme of HBR Layout 3rd stage was it already handed over to BEL company under exchange deed ? (iii Whether there is delay and laches in filing the petitions and therefore, the petitions are liable to be dismissed ? (iii) What order ? 33 34. Upon hearing the arguments of learned counsel for the parties and perusal of the records in both petitions, it reveals that the petitioners are the owners of land in Sy.Nos.8/2A and 8/1 of Guddadahalli village. It is an admitted fact that various lands have been notified for acquisition including the petition schedule lands by preliminary notification dated 02.06.1978 (Annexure-A). It is also an admitted fact that final notification was issued on 02.02.1989 (Annexure-B) and an award has been passed on 27.10.1989. It is also an admitted fact that, in the earlier writ petitions, which were under challenge before this court in some other proceedings, the BDA notified the lands under preliminary notification for formation of HBR Layout 3rd stage, totalling 982 Acres and 6 Guntas of land and in the final notification, the BDA has dropped 548 Acres and 14 Guntas of lands from acquisition and the final notification was issued only for 433 Acres and 32 Guntas. It is admitted that though the final notification was issued for 433 Acres and 32 Guntas, but award has been passed only for 97.07 acres. The contention of the petitioners is that, preliminary notification and final notification has been published in official gazette and in paper publication, for passing award and surveying the 34 land. Even after passing the award or prior to passing the award, the notice was not served on the petitioners. 35. It is also seen from the record and the statement of objections made by BDA that the land is said to be taken over as per Section 16 of the LA Act and thereafter, it was handed over to engineering section of BDA. The contention of both BDA and BEL company is that BDA has formed Ring Road and under pass, by taking the land of the BEL company with an assurance to give alternate land to the BEL company. As per the assurance, the BDA is said to be handed over the petition schedule property in Sy.Nos.8/2A and 8/1 to the BEL company under exchange deed in the year 2014 and an allotment letter dated 01.08.2014 was issued by BDA. Subsequent to the handing over the land by the BDA to BEL company, they have found that there is no access to the said land. 36. The learned counsel for the writ petitioners were mainly argued for quashing the notification of the respondent-BDA mainly on the 4 grounds; the first ground urged by them is that the scheme for acquisition of land for formation of the HBR layout 3rd stage has 35 been lapsed and there is no layout formed and sites were allotted. Therefore as per Section 27 of the BDA Act, the acquisition shall be dropped. The 2nd contention is that the surrounding lands of the suit schedule property about three lands were dropped or de-notified under Section 27 of the Land Acquisition Act, and the suit schedule land is in between the said three lands, it became a land locked, there is no access ingress and egress to the suit schedule property. Therefore this present notification also to be quashed/de-notified in favour of the petitioners. The 3rd contention of the petitioners are that the property though notified for acquisition and award has been passed, no notice has been issued to the petitioners and possession was not taken, the petitioners were continued to be in possession until BEL company came for putting up construction on the suit schedule property then only they came to know about the acquisition of the proceedings. Hence, they challenged the same. The 4th contention of the petitioner is that the land was vested with the petitioner and possession was not taken in order to allotting to the BEL company under exchange deed and 36 subsequently, the BEL company found that there is no access to the said land therefore there was alternative land allotted to the BEL company at Kempegowda Layout. Note sheet of the BDA reveals the alternative land given to the BEL company. Therefore, question of handing over the property to the BEL Company by BDA does not arise. Hence, prayed for allowing the petition. 37. They also contended that the Co-ordinate bench of this court already quashed the another land which was acquired by the BDA under the same notification that was not challenged, and even in another case the Division Bench has categorically held that the possession was not taken physically and quashed the notification. Such being the case the petitioners are entitle for the same relief. 38. On perusal of the first contention raised by the petitioner counsel in respect of the lapse of scheme by the State/BDA that formation of HBR layout 3rd stage. Admittedly preliminary notification was issued by the BDA on 02.06.1978 (Annexure-A) for acquisition of 982 37 acres 6 guntas of land for formation of HBR layout 3rd stage and it is also admitted that a final notification (Annexure-B) was issued under Section 6(2) of Land Acquisition Act, only for 433 acres 32 guntas by dropping 548 acres 14 guntas of land. Subsequently an award has been passed only for 97.7 acres of land. The said fact was placed before the co-ordinate bench of this court and Division Bench of this court in the other matters, where the land owners got the order of quashing the notifications before this court. In a similar case, the co- ordinate Bench of this Court quashed the notifications, on the ground that the scheme was lapsed as per Section 27 of the BDA Act. Wherein co-ordinate bench quashed the notification on the ground that the scheme was lapsed under Section 27 of the BDA Act, when the de- notification was made by the another land which clearly reveals the de-notification of the connected land and lapse of scheme mentioned by the BDA and quashed the notification. 39. On perusal of the case on hand admittedly the State Government though notified various lands, 982 38 acres of land for formation of HBR layout 3rd stage but they dropped 548 acres of land in the final notification, only 433 acres were notified and subsequently award came to be passed only for 97 acres, which clearly reveals the scheme of formation of HBR layout 3rd stage has not completed and it is lapsed as per Section 27 of the BDA Act. Section 27 of the BDA Act as under; 27. Authority to execute the scheme within five years.- Where within a period of five years from the date of the 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 shall lapse and the provisions of section 36 shall become inoperative. 40. Apart from that, the very BDA has de-notified three lands adjacent to the petition schedule property as per Section 48 of Land Acquisition Act, in respect of Sy.No.6/2, 6/2b and 7 of Guddadahalli village, the said notification withdrawn from the acquisition of the said land. These land is just adjacent and surrounding either 39 side of the present suit schedule property of the petitioners, withdrawing the notification was done issued by BDA on 05.01.2010 and till date the BDA has not produced any layout plan or formation of sites for HBR layout 3rd stage have been completed and allotments were made to the any public at large. If at all the scheme was completed, there is no question of dropping 548 acres out of 982 acres of preliminary notification does not arises and final notification only for 433 acres and if 433 acres were acquired for formation of the HBR layout 3rd stage the question of passing award for 97 acres does not arises, which clearly reveals the scheme was not implemented and it is lapsed, therefore the petitioners are able to show the scheme was not implemented and it is lapsed for implementation /formation of HBR layout 3rd stage and no lands were taken over the possession by the BDA as per Section 16 of the Land Acquisition Act, if at all the lands were already taken over the possession the question of de-notifying the land under Section 48 for the land in Sy.No.6/2, 6/2B and 7 of the Guddadahalli village does not arises. If the boundaries of this lands are 40 verified, this lands were either side of the suit schedule property. In view of the de-notifying of these three lands, the land of the petitioners struck in between the three lands and there is no access to the reaching to this petitioners land i.e., suit schedule land by either BEL/BDA, in view of the de-notification of the three lands on 05.01.2010. That apart it is also seen from the records available in regular first appeal on the documents the BEL requested the BDA to ingress and egress to the said land under the exchange deed given by them and they also corresponding with the BEL company that they were acquired some land for making the road to access with the suit land. Which clearly reveals the suit schedule property land locked by surrounding three lands which were already de-notified by the BDA. 41. The respondent counsel has contended that once award has been passed lands were vested with the State, thereafter the lands were physically handover to the Engineering Section of BDA and thereafter the BDA executes the exchange deed in favour of the BEL company. In this regard, the petitioner relied upon the 41 judgment of the Division Bench of this court in the case of Sri. Anthony Reddy, since deceased by his Lrs and another Vs The State of Karnataka, reported in ILR 2020 KAR 1348, in the similar case in respect of the land acquired by the same notification has been challenged by the Sri. Anthony Reddy and others wherein the Division Bench of this court has held as under; (h) It is the further contention of the Learned Senior Counsel for the respondents BDA, that the records namely the mahazar would indicate that the possession has been taken in accordance with law in the presence of the panchas. We have considered the mahazar produced by the BDA for both the lands. It would indicate that the same is in a cyclostyle form. The presence of the owner is not found. The owner or the person present at the time of drawing the mahazar has been deleted. Therefore, it would show that the owner was not present when the possession was taken. Secondly, the signature made on the mahazar is sought to be argued as that of the owner. This we find rather hard to accept. There is no material to indicate that the said signature on the mahazar, belongs to the owner himself. 42 (i) The further objection to the mahazar by the petitioner, is that the panchas who signed the mahazar, were not identifiable. On considering the records, we find certain signatures/initials in the mahazar which are not relatable to any person. As held by the Hon'ble Supreme Court in a number of decisions, the Mahazar witnesses are required to be identified. One would have to know who was the witness to the Mahazar. If the witnesses cannot be identified. then the witness of material, as to who have siperson cannot be what are their nang such persons, cannot be accepted. There is no where they are resave signed this documentars are forthcoming Therefore, the Mahazar witnesses cannot be relied upon. 42. In the same judgment Hon'ble Division Bench has held at para No.20 as under; 20. The further plea of the petitioners is that the respondent-BDA has produced a resolution dated 18.11.2000 passed in Resolution No.147 of 2000. The same is produced herein as Annexure-E to the Writ Appeal. We have considered the same. The same would indicate that a Resolution was passed by the respondent-BDA to drop the proceedings with regard to the said layout, which Resolution was forwarded to the Government. The Learned 43 Government Advocate submits that having received the said Resolution, the same is pending consideration. Under these circumstances, the petitioners contend that when the BDA itself has sought to withdraw from the acquisition or to drop the acquisition, the question of continuing the Scheme or the acquisition would not arise for consideration under any circumstances. The resolution was passed on 18.11.2000. Even after 19 years, the file is still pending consideration by the State. Therefore, this clearly implies that the State has no interest in continuing with the acquisition and therefore no orders have been passed thereon. Therefore, once the BDA themselves have passed a resolution they cannot now seek to contest the acquisition or the lapse of the scheme. Therefore, we find that this is also an additional ground to allow the Appeals. 43. In the same judgment Hon'ble Division Bench has held at para No.22 as under; 22. Therefore, in 22. conclusion, we are of the view that the writ petitions require to be allowed. The material on record would indicate that 982 acres 6 guntas of land were sought to be acquired. 548.14 acres were dropped from the final Notification. Therefore, what remained was only 433.32 acres. Out of 433.32 acres, award has been passed only for 97.07 acres. 44 There is no award for the remaining extent of land. The possession has not been taken from the writ petitioners. Not even a single plot of land has been developed. The respondent-BDA themselves have stated in more than one affidavit that possession has not been taken and the scheme has not been implemented. The respondent-BDA have already passed a resolution to drop the proceedings. Therefore, they cannot contend to the contrary. Therefore, virtually no ground exists either to sustain the scheme or the acquisition. 44. In view of the judgment of the Hon'ble Division Bench in the connected matter it is clearly held that the possession taken by the BDA in a Cyclostyle form and hand over to the Engineer Section which is not correct and the land cannot be said to be vested with the State as contended by the respondent -BDA. That apart the Division Bench has categorically held that the scheme itself is lapsed and even BDA passed resolution on 18.11.2000 for withdrawing the notifications and dropping the proceedings. Though the respondent counsel has contended that the said judgment has been appealed to the Hon'ble Supreme Court but no order has 45 been passed by the Hon'ble Supreme Court and judgment of the Division Bench of this court not set aside by the Hon'ble Supreme Court. 45. Sri B.S. Sachin, learned counsel for the respondent Nos.2 and 3 appearing for the BDA relied upon the judgment of the High Court reported in 2018 SCC Online Karnataka 4080 in the case of S.Hareesh and Ors Vs State of Karnataka and Ors, wherein at paragraph No.60 of the judgment, the coordinate bench has held that in the said case, the scheme was substantially held or full-fledged layout has been formed in respect of Nagarabhavi layout. Therefore, the preliminary notification was issued in 1982, the final notification issued on 16.08.1985 and the layout was full- fledged formed by utilising the entire land, thereby it is held that the scheme was not lapsed. But here in this case, the respondent/BDA not produced any documents to show that the HBR 3rd Stage Layout stage has been formed and no records of allotment of sites to the public produced to show how many sites are formed in the layout as already 982 acres was preliminarily notified and 433 acres were finally notified and award has been passed only for 97 acres. It cannot be said that the scheme was substantially fulfilled or layout was 46 formed by BDA. Therefore, the said judgment has not come to the aid of the counsel for BDA. 46. In another case, BDA counsel appearing for respondent No.2 and 3, Sri.Ajay Kumar M., also taken the same contentions that once the land has been acquired, the same is vested with the State, free from all encumbrances and the land owners becomes "Persona Non Grata" once the land vested in the State, he has to write compensation only for the same. There is no second opinion in the judgment of Hon'ble Supreme Court held in 2010 (8) SCC 467 in case of Sulochana Chandrakanth Galande Vs Pune Municipal Transport and Others. 47. In another case, BDA counsel relied upon the judgment of Hon'ble Supreme Court in case of Offshore Holding Pvt Ltd., Vs BDA and Ors reported in (2011) 3 SCC 139 the Hon'ble Apex Court has held that the BDA is altogether different from the Land Acquisition Act. The BDA Act, contains self code in respect of acquisition proceedings. 48. In another case, 2023 Live law Supreme Court 302 in case of Land and Building Department Through Secretary & Anr., Vs Attro Devi and Ors, the Hon'ble 47 Apex Court has held vesting of the land with the State is with possession and any person restraining the possession thereafter has to be treated as trespasser. 49. In another case reported in (2012) 12 SCC 133 in case of V.Chandrasekaran and Another Vs Administrative Officer and Others in respect of challenging the notification by the subsequent purchaser, impermissibility due to voidance of title. 50. There is no second opinion in respect of the principle laid down by the Hon'ble Apex Court in the above said cases. However, the case in hand is altogether different from the fact of the case stated above. Since BDA though issued preliminary notification in 1978 (Annexure-A) for agreement of 982 acres for formation of the HBR 3rd Stage Layout. Whereas, the 432 acres were only notified, through final notification issued on 02.02.1989 (Annexure-B), after 11 years. Though the final notification was issued for 433 acres, but the award came to be passed only for 97 acres of land and it is alleged that they have taken possession of 97 acres by awarding the compensation. Admittedly, the compensation was not received by the petitioners in both writ petitions and there is no documents produced, the notice has 48 been served on them. As already held above, once the preliminary notification issued, the land award has been passed, the land said to be taken over the possession by the BDA and handover to the Engineer Section of BDA, the question of denotifying the adjoining land of schedule property under Section 48 of the Act does not arises The Sy.No.6/2. 6/2b and 7 is surrounding land which are adjacent lands by their side of the schedule property has been denotified and another land has been quashed by the coordinate bench of this court. Subsequently, the division bench also quashed the final notification in respect of the some other properties and there is a failure of the implementation of the scheme, as they have not formed layout 'HBR III Stage'. The same scheme was held by the Division bench of the High Court stated supra in ILR 2020 Karnataka 1320. Subsequently the very BDA itself passed resolution in the year 2000 for dropping the scheme itself. Such being the case, the Division bench already held that there is no possession taken over by the BDA in accordance with law. The learned counsel for the petitioner also relied upon some of the judgment of the coordinate benches regarding mode of taking possession. 49 51. Therefore, the contention of the learned counsel for the respondent that the BDA has been acquired, the property land was vested with them and thereafter they got exchange deed with the BEL Company and the scheme was formed for forming the HBR 3rd Stage Layout, whereas in the exchange deed the BDA given the land to the BEL Company and it is not the scheme for forming the layout or land was acquired for the purpose of transferring to the BEL company. The denotifying adjacent lands under Section 48 of the Act transferring some of the properties to BEL and non- compliance of scheme clearly goes to show that under Section 27 of BDA act this scheme was lapsed. Therefore , the petitioners are able to show the lands were in their possession and they continued to be in possession till 2014 and thereafter. 52. As regards to the contention raised by the learned senior counsel for the respondent regarding delay in filing of the writ petitions, in this regard, learned senior counsel for the respondent relied upon the judgment of Hon'ble Supreme Court in reported in 2020 (3) SCR 1 in case of Indore Development Authority Vs Manoharlal and Others etc., where Hon'ble Apex Court has held at para 350 any inordinate 50 delay in questioning the notification after lapse of time, the relief cannot be granted. Hon'ble Apex Court has dealt with the matter in detailed and passed the order. 53. Here in this case, though the preliminary notification was held or passed in 1978 for 982 acres whereas final notification was issued only in 1989 and award was said to be passed in 1989 and symbolic possession said to be taken on 30.1.1992 after almost 15 years of notification and scheme was not at all implemented in forming layout. Such being the case, and even while taking the possession, no notice was issued to the owners of the land and even the compensation was not paid to the petitioners. 54. Such being the case, it cannot be said that the petitioners are having knowledge of acquisition and until 2014, where the BEL company came for constructing the compound wall the petitioners are not aware of the notification, taking possession, since there is no layout formed by the BDA, if layout is formed, the petitioner could have had knowledge of forming the layout by the BDA after acquisition. But there is no layout formed and the land of the petitioner was locked by denotification of the adjacent land by the BDA in Sy.No.6/2, 6/2A and 7. There is no chance of thinking the 51 land has been acquired by the BDA and no compensation was paid to them by issuing proper notices. 55. Such being the case, the petitioner have clearly made out case that they came to know about the acquisition only in the year 2014 after executing of the sale deed by the BDA in favour of the BEL company and when BEL company came with men and material for constructing the compound wall, the surrounding land were obstructed as there is no ingress and egress to the suit schedule property. 56. Such being the case, the petitioners have made out sufficient grounds condoning the delay in filing the petitions. Therefore, considering the facts and circumstances of the case and reasons assigned by me, the petitioners are successful in showing or quashing the notification issued by the BDA. Accordingly, both the petitions deserves to be allowed. 57. As regards to RFA No.257/2020 This appeal is filed by the appellants/defendants under Section 96 of CPC for setting aside the judgment and decree passed by the Addl. City Civil and Session 52 Judge, Bangalore in O.S.No.,1870/2015 dated 27.11.2018. 58. Heard learned counsel for the appellants and learned counsel for respondent. 59. The appellants are the defendants before the Trial Court and the respondent was the plaintiff before the Trial Court. The ranks of the parties are retained for the sake of convenience. 60. The case of the plaintiff before the Trial Court is that the plaintiff is the public sector undertaking company and the plaintiff was absolute owner in possession of the schedule property got the ownership in possession of the property through exchange deed dated 17.10.2014 executed between the BDA and the plaintiff, which registered deed from the said date and plaintiff is in possession of the suit schedule property. It is further contended that the plaintiff also called the tender process for construction of compound wall to protect the property. Accordingly, the tender was also given to one RK builders, where they started putting up of the 53 construction of the compound wall, at that time, the defendant No.3 along with the other defendant trespassed and stopped the construction work and they were not allowed to work and the same came to the knowledge of the plaintiff company. A police complaint also was lodged on 29.1.2015 but they have suggested to approach the Civil Court. Hence, the plaintiff approached the court by filing the suit for injunction. 61. In pursuance of the summons, the defendant Nos.1 to 2 and 5 and 6 appeared and filed written statement contending that the suit is not maintainable. The plaintiff approached this court by suppressing the fact that the writ petition is filed before the high court and the said property has not been acquired by the BDA. The BDA cannot execute any exchange deed to the plaintiff and further contended that the defendant Nos.1 to 3, 5 and 6 are the owners are the legal heirs of one Mohammedan lady, as she has been original owner of the Sy.No.8/2A , 8/1 and the said Smt.Aasiyabi, died on 08.07.2020. The defendants are legal heirs succeeded the property in Sy.No.8/2A. Accordingly, they are in 54 possession of the property. It is further contended that the BDA issued preliminary notification on 02.06.1978 (Annexure-A) for acquisition of the schedule property. On 02.02.1989, a final notification was issued. The compensation also was awarded, the compensation award was passed on 27.10.1989 and the possession said to be taken under the Land Acquisition Act and it is further contended that the ancestors of the defendant has not received any acquisition notification and also not received any compensation. The physical possession of the property has not been delivered to BDA and recently came to know that the BDA received the notifications for acquiring the property. Hence, they changed the same before the high court in writ petition No.46916, 51667, 51668/2014. The writ petitions are pending. Hence the matter is subjudiced the suit is not maintainable. Hence, the appellants approached this court for dismissing the said suit. 62. Based upon the pleadings, the Trial Court framed the following issues as under: 55 1. Whether the plaintiff proves that it is in possession and enjoyment of the suit schedule properties as on the date of the suit? 2. Whether the plaintiff proves that alleged interference? 3. Whether the suit of the plaintiff is maintainable? 4. Whether the plaintiff is entitled for the reliefs sought for? 5. What order or decree? 63. Learned counsel for the appellant has contended that mainly the judgment of the trial court is not sustainable as possession of the properties was not at all taken by the BDA and the question of handing over the same to the BEL company, does not arises. The exchange deed executed by the BDA in favour of the BEL is only a paper transfer, actual physical possession was not taken. The land was locked there is no ingress and egress to approach the suit schedule property. Therefore, the BEL company requested the BDA for formation of the road by ingress and egress and it was replied by the BDA that they will acquire the land for formation of the land, but no acquisition was made. The surrounding lands were already denotified by the BDA, therefore, the question of 56 handing over the possession does not arises. The division bench already held that no possession was taken over by the BDA, as per the submission made by the BDA. Subsequently, the BDA proposed to allot alternative land at Kempengowda layout to BEL company and they accepted the same. The BDA also charged some extra charges of Rs.4 lakh, if BEL Company requested to waive such extra charges. Therefore, from the correspondence made by BDA and BEL clearly reveals that the property was not taken possession. Such being the case, granting decree is not correct and even otherwise, the decree was granted was only for a limited period until decision of the High Court in the writ petition. Therefore, prayed for allowing the appeal. 64. Per contra, learned counsel for the respondent supported the case of the trial court. 65. Having heard the arguments, the point that arise for consideration is, (1) Whether the plaintiff proves that they are in possession and enjoyment of the properties and the defendants are trying to interfere? (2) Whether, the plaintiff suffers irreparable loss, if the injunction is not granted? 57 (3) Whether the judgment of the trial court calls for interference? 66. Though the trial court framed the issues and answered in favour of the plaintiff and on perusal of the records, and the decision in the writ petition, holding that the land in question totally of 982 acres in different villages have been notified for acquisition by the State, and final notification was issued only for 433 acres and award has been passed only for 97 acres. Out of which, the land of the defendants in Sy.No.8/2 and 8/2A was also notified and award has been passed. Admittedly, the compensation was not given to the defendants and question also not properly taken by the BDA. Therefore, the question of handing over the possession and vesting with the land under Section 16(2) of the Land Acquisition Act, is not acceptable. If at all, the possession is already given as stated by the BEL company, the question of allotting the land at Nadaprabhu Kempegowda, layout does not arises. The Subsequent development in the case, that the alternative land for more than 5000 sq.ft has been allotted to the BEL company by the BDA and the same was accepted by them. The BDA also requested to deposit some more amount which was not paid by them, they requested for exemption or 58 waiving the additional amount, which was not agreed by the BDA. Such being the case, it cannot be said that the BDA handed over the physical possession to the BEL Company, in order to show that the possession and enjoyment of these properties. It is admitted fact that the surrounding land of the schedule property has been denotified under Section 48 of Land Acquisition Act, i.e., for Sy.No.6/2, 6/2B and 7 of the Guddadahalli Village whereas the land of the defendant is in Sy.No.8/2 measuring 1 acre 9 guntas and in Sy.No.8/2A measuring 8 guntas has been alleged to be handover to the BEL company by taking over the possession, the Division Bench already held that no possession has been delivered by the Government as per the law. Such being the case, the evidence of the PW.1 and the documents i.e., exchange deed is not sufficient to prove or to hold that the land was vested with the Government and it was handed over to the BEL company and they are in possession, as on the date of filing of the suit. 67. As regards to the balance of convenience and irreparable loss and interference, it is already stated in the writ petition that there is no physical possession taken over by the BDA. The surrounded lands were already denotified 59 from acquisition proceedings stating that this land is middle and land locked and there is no ingress and egress. Therefore taking out possession and handing over possession to BEL company does not arises. Regarding taking over of the possession has been disbelieved by the Division Bench of this court in the Anthony Reddy’s case, stated supra. Such being the case, there is no question of interfering in the possession of the properties, arises as the defendant continue to be in possession till the plaintiff trying to put up construction of compound wall. Thereafter, they have filed writ petition and decision is also in favour of the defendant in writ petition. Such being the case, there is no question of interference by the defendants, proved by the plaintiff. 68. Hence, granting injunction in favour of the plaintiff does not arises. That apart, the land has been already given to the BEL company by BDA at Nadaprabhu Kempegowda layout in subsequent days and the entire scheme was dropped in 2000. Such being the case, the question of granting injunction in favour of the plaintiff/BEL does not arises and the judgment of the trial court is only till disposal of the decision of the writ petition. 60 69. Such being the case, I am of the view the judgment of the trial court granting injunction to the BEL company is liable to be set aside as against plaintiff. Accordingly, I answered point Nos.1 and 2 in negative and judgment of the trial court calls for interference. 70. For the aforesaid reasons, I pass the following order: (i) W.P. Nos.46916/2014 and 26836/2015 are hereby allowed. The preliminary notification dated 02.06.1978 and final notification Gazette Dated:02.02.1989 in respect of Sy.No.8/1 measuring 10 guntas of land and in Sy. No.8/2A measuring 1 acre 31/2 guntas of land respectively, situated at Guddadahalli village are hereby quashed. (ii) RFA No.257/2020 filed by the appellant is allowed. The impugned judgment and decree passed by the trial Court in O.S. No.1870/2015 dated 27.11.2018 is set aside. The suit of the plaintiff is hereby dismissed. Sd/- (K.NATARAJAN) JUDGE CS/AKV/SRK CT:SK