ANATHA SHISHU SEVASHRAMA (R) Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This appeal is filed by the petitioner in W.P. No. 49357/2004 (LA-BDA). Aggrieved by the order dated 15.3.2007 wherein the barred Single Judge of this Court has dismissed the petition as devoid of merit.

(2.) In the said writ petition No. 49357/2004 (LA-BDA) the appellant herein sought for a declaration that the development scheme including the acquisition of the scheduled land of 25 acres 20 guntas at J.B. Kaval under final notification dated 30.8.1979 stood lapsed on 30.8.1984 as the 2nd respondent had failed to execute the Scheme substantially within five years and to quash the map called the modified Layout Plan dated 24.07.1998 of the 2nd respondent insofar as it relates to petitioner's land as the same is illegal and to declare that the 2nd respondent has no authority to prepare the said Map without disclosing the original Map subject to the modification and to declare that there is no legal vesting of the schedule land is respondent No. 1 or 2 or 3 under the BDA Act, 1976. It further sought for a declaration that the allotment of sites by the 2nd respondent to respondents 4 to 111 in the scheduled land are illegal, unsustainable and non-est as the said allotments pertain to the land not vested with 2nd respondent and also the said allotments are made without following the provisions of BDA Site allotment Rules and the BDA Act, 1976.

(3.) It is the contention of the petitioner in the writ petition that the petitioner which is a Public Charitable Society was registered under the Mysore Societies Registration Act 19/389/43-44 and the scheme of the Society is to provide residential accommodation besides educational facilities to the destitute children, orphans and women belonging to weaker section irrespective of their caste and religion. It is the further case of the petitioner that the State Government of Mysore in appreciation of Social Service rendered to the general public was pleased to grant to the petitioner - Society an extent of land measuring 25 acres 20 guntas of land at Sy. No. 1 of Jarakabande Kaval, Yeshwanthpura Hobli as per the order dated 25.3.1957. At that time, the land vested with the Government and the land was not even and fit for cultivation. Petitioner made the land even, put up construction and is running a school as also using the scheduled land for other cultural services and other construction. A preliminary notification was issued for acquiring the land pursuant to order dated 16.11.1977 and after considering the objection, final notification was issued dated 30.8.1979. No order had been passed and petitioner continued to be in possession of the property, which was sought to be acquired. Property adjacent to the petitioner's property has been de-notified. The alleged notification issued under Section 16 of the Act taking possession of the land was only nominal and mahazar is also drawn and it does not depict the 2nd respondent taking possession of the schedule land and petitioner continued to be in possession of the property and since no valid and due award has been passed within five years from the date of final notification dated 30.8.1979 the scheme has lapsed in terms of the provisions of Section 27 of the Act and therefore, acquisition of land in terms of provisions of Section 36 of the Land Acquisition Act would not be applicable and therefore, the main prayer and consequential prayers sought for the writ petition may be granted. The petition was resisted by the respondents. The learned Single Judge after considering and holding that the acquisition proceedings have already been upheld in the earlier writ proceedings and accordingly the material on record indicates that the notification has been issued under section 16(2) of the Land Acquisition Act and possession has also been taken which has been disputed by the petitioner; petitioner has already approached the Civil Court and the question whether possession of the property has been taken or not, and as to whether due award has been passed and as to whether the scheme has lapsed, which is disputed by the respondents, are all disputed questions of facts and in exercise of writ jurisdiction of this Court, the learned Single Judge rejected the writ petition with costs of Rs. 25,000/- having regard to the fact that the petitioner is in the habit of filing writ petitions which are devoid of merit and the matter was referred to legal service authority.