ADHYAYANA VIDYA TRUST, SRINIDHI, NO. 505, 4TH CROSS, 2ND STAGE, 2ND BLOCK, HRBR LAYOUT, KALYANANAGARA, BANGALORE - 560043 BY ITS SECRETARY, MURTHY, SON OF LINGAIAH Vs. BANGALORE DEVELOPMENT AUTHORITY, T. CHOWDAIAH ROAD, KUMARA PARK, BANGALORE, B

JUDGEMENT

(1.) THE petitioners in W.P. No. 860/2009 claim as joint owners of land in survey no. 42/47 of Mallathahalli, Yeshwanthpur Hobli, Bangalore North Taluk, measuring about 2 acres. The said land is claimed to have been granted to one Jutta Bhovi in the year 1953. He was said to be the father of the first petitioner, the father -in -law of the second petitioner and the grand -father of the other petitioners. The legal representatives of Jutta Bhovi are said to have initiated proceedings under the provisions of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978, (Hereinafter referred to as the 'PTCL Act'), against one M. Mahadev, who had purchased the said lands in contravention of the above Act. He was ordered to be evicted and the lands resumed, as per the order dated 15 -2 -1993 passed by the Assistant Commissioner, Bangalore Sub -Division. On an appeal against the said order, the matter had been remitted to the Assistant Commissioner for a fresh enquiry. Again, by an order dated 29 -8 -1997, the Assistant Commissioner had reiterated the order of eviction. The same was confirmed in appeal as per order dated 1 -7 -2002, by the Special Deputy Commissioner, Bangalore District. A Writ petition filed against the said order, in W.P. No. 12622 / 2003 was dismissed on 2 -7 -2003. The petitioners therefore claim to be in possession of the land after the above proceedings attained finality.

(2.) IT is claimed that the Bangalore Development Authority (Hereinafter referred to as 'the BDA', for brevity) had proposed to acquire the land in question, along with other lands for the purpose of formation of the Sir. M. Vishveshwaraiah Nagar Further Extension Layout. A Preliminary notification dated 9 -4 -2003 is said to have been issued showing the petitioners as the khathedars of the land in question. They, however, claim that they have not been served with notice of the same. This is followed by a final notification issued under Section 19(1) of the Act, dated 10 -9 -2003. There were said to be a series of writ petitions challenging the said acquisition proceedings, the petitioners had also filed a petition in W.P. No. 3827/ 2004. Those petitions were disposed of, upholding the acquisition, by an order dated 6 -6 -2006. However, this court had issued certain directions to the BDA to consider the cases of land owners whose lands could be exempted from the acquisition. The petitioners' application in this regard to the BDA was rejected. It is contended that having regard to the fact that the competent authority was required to make an award within two years from the date of publication of the final notification, in terms of Section );">11A of the Land Acquisition Act, 1894 (hereinafter referred to as the 'LA Act' for brevity), the acquisition proceedings in the present case on hand have lapsed. It is elaborated as follows: The final notification in respect of the petitioners' lands was issued on 9 -9 -2003. It was published in the Gazette on 10 -9 -2003. The writ proceedings were initiated by the petitioners challenging the acquisition as on 21 -1 -2004. All the writ petitions challenging the acquisition were disposed of on 6 -6 -2006. The award is said to have been passed on 10 -6 -2008 and duly signed on 11 -6 -2008. The award is approved on 16 -6 -2008 by the competent authority. It is hence contended even providing for the time consumed by the writ proceedings challenging the acquisition, the Award was made beyond the period of two years and hence the acquisition had lapsed. Even otherwise it is contended that possession of the land never having been taken by the BDA, from the petitioners, the land has never vested with the BDA. It is also contended that the BDA had, by a Resolution dated 4 -8 -2008, allotted 14 guntas of the petitioners' lands in favour of a Trust, Adyayana Vidya Trust and had also executed a sale deed dated 22 -9 -2008 in its favour. It is contended that the BDA has no such power to convey the property either by sale or exchange. As the BDA had failed to form sites in the said land, the said allotment and transfer in favour of the said Trust, is violative of Section 38B of the BDA Act. The transfer is also not preceded by the prior approval of the State Government. The allotment cannot even be characterized as bulk allotment as there is no compliance with the prescribed Rules. The learned counsel for the petitioners hence seeks that reliefs be granted as prayed for.

(3.) THE learned counsel appearing for the third respondent contends as follows: The third respondent is a registered Public Charitable Trust. It is established with an object of improving the educational and socio -economic conditions and strengthening culture and values in education for scheduled castes and scheduled tribes and other backward classes namely denotified tribes, nomadic tribes and semi -nomadic tribes and other objects for the benefit of the public in general and SC, ST and Backward classes in particular. It has established and is managing educational institutions at Mandya, Malavalli and Bangalore. The third respondent with an object of establishing a school for the Scheduled caste and Scheduled Tribe students, made a representation to the Deputy Commissioner seeking allotment of land in Bangalore. The Government by considering the request of the third respondent granted its permission to allot 1 acre 20 guntas of land in Survey No. 67 of Herohalli village, Yeshwanthpura Hobli, in favour of the third respondent for a market value of Rs. 5 Lakh per acre, as per Annexure -"R1" The Deputy Commissioner by his letter dated 14.9.2000 directed the third respondent to deposit Rs. 8,31,710/ - being the market value of the said land and also the conversion charges. Annexure -"R2" is the copy of the said letter. Accordingly, the third respondent paid the said entire amount to the Government. Though the third respondent paid the entire amount as demanded above, the Government was not able to hand over vacant possession of the land, as it was found that, 28 guntas of the land was acquired and occupied by the BDA and it has utilized the same for the formation of extended Sir. M. Visweshwaraiah Layout, and the remaining 32 guntas of land was occupied by some private persons. In view of the said fact, the Principal Secretary to Government (Revenue Department) called a meeting of the officers on 1.4.2008. In the said meeting, it was decided that the BDA should compensate for 28 guntas of land acquired by it by either allotting a Civic amenity site or by giving an alternate land to be identified by the BDA and the Special Deputy Commissioner, Bangalore, has to identify the remaining 32 guntas of land in the nearby area in the said village and submit proposal to the Government for grant to the third respondent. The BDA, contrary to the above said direction of the Government, called a meeting on 4 -8 -2008 under subject No. 501/2008 to grant 28 guntas of land, in Survey No. 42., Block -I of Mallathalli, Yeshwanthpura Hobli, Bangalore North Taluk (extended layout of Sir. M. Visweshwaraiah Nagara), out of the land measuring 4 acre 10 guntas with the following boundaries: East: 80 Feet Road West: Remaining portion of the land in the same Sy. No. belonging to other owners. North: Remaining portion of the land in the same Sy. No. belonging to other owners. South: Remaining portion of the land in Block No. 1 measuring 4 acres 10 guntas in respect of which the award is passed. Annexure "R -4" is the copy of the survey sketch identifying the said portion. But the BDA, contrary to the decision taken in Annexure "R -3" to which it was also a party, passed a resolution on 4.8.2008 resolving to grant only 14 guntas of land instead of 28 guntas of land. Annexure "R -5" is the copy of the extract of the said resolution and accordingly it has issued the allotment letter dated 19.9.2008, and issued possession certificate dated 22.9.2008 and also executed a registered Sale Deed, marked as Annexure "R -6". The third respondent is intending to establish a nursing college, for the benefit of the Scheduled caste and Scheduled Tribe students with all infrastructure like, sufficient school building, play ground, library and etc., The land measuring 14 guntas granted by the BDA is insufficient to establish the same with all the infrastructure. The decision taken by the BDA to allot only 14 guntas of land is contrary to the direction issued by the Government. Hence, the third respondent made a representation dated 16 -9 -2008, to the BDA to allot the remaining adjacent 14 guntas of land to the land which is already granted. Annexure "R -7" is the copy of the said representation. Till today, the BDA has not taken any steps to allot the remaining adjacent 14 guntas of land in favour of the third respondent. Hence, the third respondent filed W.P. 14074/2008 (BDA) seeking mandamus to the BDA to allot the said adjacent land in favour of the third respondent. In the said writ petition, this Court was pleased to issue emergent notice to the BDA and the said writ petition is still pending. During the pendency of the above said writ petition, the petitioner has come up with the present writ petition by making all false and untenable allegations. The present writ petition filed by the petitioner is not maintainable under law and facts and the same is liable to the dismissed in limine. Admittedly, the petitioners have filed Writ Petition No. 3827/2004 challenging the acquisition of the lands in question. The said writ petition along with the other connected writ petitions came to be disposed of by this Court by an order dated 6.6.2006. This Court, while disposing of the said writ petitions, has given liberty to all the land owners who are not served with the notices to make appropriate applications to the authorities seeking exclusion and exemption of their lands from acquisition within three months from the date of the said order, if their land falls under any one of the categories mentioned in the said order. The petitioners are not eligible to seek exemption and exclusion of their lands from acquisition since their case will not come under any one of the categories mentioned in the said order. It appears that, the petitioners have not made any representation pursuant to the order passed by this Court, seeking exemption/exclusion of their land from acquisition. Therefore, the third respondent submits that, the challenge to the acquisition of the lands in question are concerned, has become final, and the petitioners are not entitled to re -agitate the same in the above writ petition. The learned counsel would further contend that the connected writ petition be allowed with an appropriate direction to the BDA to convey the remaining extent of 14 guntas of land, which has been long delayed. In the light of the above, the vehement denial of the petition averments as to the acquisition proceedings having attained finality with reference to the sequence of events and material documents by the respondents is not refuted by the petitioners by way of any rejoinder. The petitioners have essentially challenged the Award, pursuant to the acquisition proceedings as being beyond the time prescribed under the Statute. The challenge is also to a resolution passed by the BDA in respect of the sale of land made in favour of the third respondent. In so far as the first ground of challenge is concerned, it is not in dispute that there was an earlier challenge to the acquisition in writ proceedings in WP 3827/2004 and several other matters, which were disposed of by an order dated 6 -6 -2006. In terms of the said order, the petitioners were required to make an appropriate representation seeking exemption of their land from acquisition if the said land fell in any of the categories referred to in the above said order. It is denied by the BDA that there was any representation made by the petitioners. This is not seriously refuted by the petitioners. In so far as the contention of the Award being beyond a period of two years and hence being opposed to Section );">11A is concerned, it is pointed out that the question is settled by the apex court, which has held that the said provision would not be attracted to acquisition proceedings under the provisions of the BDA Act. The circumstances leading up to the decision to convey land in favour of the third respondent is adequately explained by the respondents to demonstrate that the same cannot be said to be illegal. Accordingly, the writ petition in WP 860/2009 is hereby dismissed. The writ petition in WP 14074/2008 is allowed. Respondent no. 1 is directed to expedite the allotment of the remaining extent of 14 guntas of land, which is said to be adjacent to the land already granted to the petitioner in Survey No. 42 of block no. 1 of Mallathahalli, Yeshwanthpur, Bangalore North Taluk, in any event, within a period of eight weeks, if not earlier, from the date of receipt of a certified copy of this order.