S.N. SIMHA Vs. THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, COMMERCE AND INDUSTRIES DEPARTMENT, VIKASA SOUDHA, DR. AMBEDKAR VEEDHI, BANGALORE - 560001 AND OTHERS

JUDGEMENT

(1.) THE petition averments are as follows. The petitioners, who are husband and wife, claim that they are the owners of three residential sites, totally measuring 29500 square feet, culled out of land in Survey no. 58/1 and 59/1 of Thanisandra, Krishnarajapuram Hobli, Bangalore East Taluk. The same was said to have been purchased from one Gopalappa and his sons. It is stated that Gopalappa and his brother Ramaiah had inherited the property from their mother Yerramma, who is said to have purchased the same under a sale deed dated 27 -11 -1941. Gopalappa and Ramaiah had partitioned the land in the afore said survey numbers, totally measuring 3.15 acres. Under the partition an extent of 1.23 acres had fallen to the share of Gopalappa and an extent of 1.28 acres to Ramaiah. It is claimed that the two brothers had formed a residential layout in the said extent of lands, consisting of 12 sites in all, after setting apart areas for formation of roads and other infrastructure. The village panchayath is said to have approved the layout and is said to have assigned site numbers, while assessing the same to property tax. The petitioner no. 1 claims to have purchased site bearing no. 10/A in plot no. 10, measuring about 100 ft by 85 ft., under a sale deed dated 18 -8 -1994 and petitioner no. 2 is said to have purchased site no. 10/B measuring 100 ft. by 80 ft. on 24 -8 -1995. And on the same day Petitioner no. 1 is said to have purchased site no. 10/C. The sale deeds are said to have been executed by Gopalappa and his sons, Jaikumar, Shankar and Venkatesh. The Petitioners contend that khatha in respect of the sites has been transferred in their favour and that they continue to be in possession as on date. It is stated that Gopalappa and Ramaiah are said to have died in the years 1998 and 2003, respectively. It is alleged that when the petitioners visited the vacant sites in the year 2007 they found a board planted on the above sites declaring that the land belonged to the Karnataka Industrial Area Development Board, the second respondent herein. It was later learnt on further enquiries that the State Government, respondent no. 1 herein, had issued a Notification under Section 3 of the Karnataka Industrial Area Development Act, 1966, (Hereinafter referred to as the 'KIADB Act' for brevity) dated 9 -3 -2007, duly published in the Official Gazette dated 12 -3 -2007 that several parcels of land including the land comprising the aforesaid sites of the petitioners, as an "industrial area". And by a notification dated 9 -3 -2007 also published in the same Gazette of the above date, issued under Section 28(1) of the KIADB Act, proposed to acquire several items of land of Nagawara and Thanisandra villages for establishing an industrial area. The same was to be developed as such by M/s Manyata Promoters Private limited, the fourth respondent herein. It is the case of the petitioners that the notification showed the names of Ramaiah and Gopalappa, who were no more as on that date, as the owners of the land in which the petitioners' house sites were situated. The petitioners complain that they did not receive any personal notice of the said proceedings at all. It is further stated that the residential layout developed by the vendors of the petitioners is now within the jurisdiction of the Bruhath Bangalore Mahanagara Palike (Hereinafter referred to as 'the BBMP for brevity), which has reassessed the properties to tax. And that there are several houses that have been constructed in the area. It is also stated that the Bangalore Development Authority has in its Revised Comprehensive Development Plan, 2011, indicated the land in the erstwhile Survey no. 58/1 and 59/1 for the formation of a residential layout and park. Therefore the same could not be declared as an industrial area without there being a change in land user. Incidentally, it is stated that the BDA had issued a preliminary notification under the BDA Act, proposing the formation of the Arkavati residential layout over the very same land in question and the petitioners have been notified as owners of the land purchased by them. It is also stated that the said acquisition having been challenged by several land owners, the same had not attained finality as on the date of the petition and that the proceedings are pending before the apex court. It is stated that the fourth respondent had sought for land measuring 15 acres and 27 guntas for the establishment of an Information Technology park in its application to the State Level Single Window Clearance Committee. It was accordingly recommended to the KIADB, and to acquire the lands comprised in the following Survey nos. 120/5, 103/1, 103/2, 103/3, 103/4, 104/1, 104/2, 104/3, 104/4, 107, 108, 109, and 100/1 of Nagawara and 57/1, 57/2, 58/1 and 59/1 of Thanisandra by consent of the land owners. However, the notification that has followed was restricted to 13 acres 21 guntas, without indicating any reasons for deleting 2 acres 6 guntas from the process. It is further stated that the petitioner had filed Objections to the proposed acquisition as per Annexures R and R1 to R3. But the Special Land Acquisition Officer, the third respondent herein, had considered only one of the objection statements dated 25 -8 -2007 (R3) and had passed an order under Section 28(3) of the KIADB Act, rejecting the objections of the petitioners, and had recorded the inexplicable presence of the original owner of the land Gopalappa, who was not alive as on that date, by an order dated 10 -9 -2007. The petitioners had disputed the correctness of the said order before the Special Deputy Commissioner. Pursuant to which, the third respondent had submitted a report which was contrary to his earlier report. The petitioners admit that they had sought to prevent the mischievous ploy of the children of Ramaiah trying deal with the petitioners' property by filing a civil suit in OS 5130/2004, the same was dismissed on account of the lands being subject matter of acquisition proceedings. But in the pleadings in the suit by one of the sons of Gopalappa, it had been admitted that the property of the petitioners was sold in their favour and it is fraudulent for respondents no. 6 & 7 to claim to have purchased the same property. It is also sought to be demonstrated by reference to the last will and testament of Gopalappa and Ramaiah, respectively, that they had not claimed any subsisting right to the land held by the petitioners and hence the same could not be the subject of transactions of the children of the said persons who claim to have sold land to the sixth and seventh respondents. And hence there is also a challenge to revenue entries made in respect of the lands made in favour of respondent no. 6 & 7. It is further stated that the petitioners had challenged the acquisition proceedings in writ proceedings before this court in WP 17387 /2007 and the same was disposed of on 1 -7 -2009 as being premature, as the final notification had not been issued. It is three years thereafter, that as on 4 -7 -2012 that a final notification has been issued under Section 28 (4) of the KIADB Act. The same is under challenge in the present petition.

(2.) THE learned Senior Advocate Shri S.P. Shankar, appearing for the learned counsel for the petitioners would contend as follows. The house sites purchased by the petitioners which are made subject matter of the acquisition proceedings measure in all about 24 guntas as defined under the notifications. This extent of land is intended to be made over to the beneficiary, respondent no. 4 in terms of the impugned notifications. It is urged that the fourth respondent is a private company and is not carrying on any industrial activity, but are engaged as realtors and land developers. In any event the said respondent has been allotted an extent of 215 acres of land. The said respondent claims to have developed a hundred acres of the same into an IT park. In the remaining extent of 115 acres the respondent is said to have formed a residential layout and has constructed independent villas apart from club houses - to earn profit in the guise of establishing a project billed as being for a public purpose. The clearance and approval granted by the competent authority to respondent no. 4, the lands in question were recommended to be acquired by a process of consent by the land owners and subject to a clearance by the Land Audit Committee. It is contended that in the face of the report of the third respondent at Annexure V -1 to the writ petition, to the effect that the petitioners were the owners of three sites formed in a private layout formed in lands in survey no. 58/1 and 59/1 of Thanisandra and the undeniable resistance by the petitioners to the acquisition proceedings, there is no consent granted by the petitioners and hence the said proceedings are vitiated on that count. The dubious method adopted by the KIADB in active collusion with the fourth, sixth and seventh respondents to engineer the issuance of the notifications in seeming compliance with the law is not only illegal but deplorable and shocking. The names of dead persons, who were former owners of the land in question - only to overcome the requirement of consent by the petitioners, which was the sine qua non for compliance with the manner of acquisition contemplated, was a case in point. It is contended that the petitioners are in possession after the purchase of their sites under registered sale deeds. The petitioners have obtained mutation in their names, in all the revenue records from the year 1995 -96. The same is also reflected in the Register of Properties maintained by the BBMP. Property tax has been paid up to date. It is pointed out that immediately on coming to know of the notification issued under Section 28(1) of the KIADB Act, the petitioners had file objections with the third respondent to bring to his attention that the sites purchased by the petitioners are covered by the Comprehensive Development Plan issued under the Karnataka Town and Country Planning Act, 1961 (Hereinafter referred to as 'the KTCP Act', for brevity) notifying the area in which the said sites are situated as a residential area. It is hence contended that without a change in the land user - the same being declared as an industrial area is contrary to the law. It is therefore contended that the third respondent having proceeded with the acquisition process in the face of the above circumstances is clearly without application of mind and is hence non -est. The further glaring circumstance, according to Shri Shankar, which would demonstrate the dubious claim of the private respondents is that material is placed before the court along with the rejoinder filed by the petitioners to demonstrate that Gopalappa and Ramaiah had sold the entire extent of land held by them in land in survey no. 58/1 & 59/1 along with their sons, during their life -time. In their respective wills, of Gopalappa and Ramaiah, they have therefore not referred to the said lands as they had no subsisting interest therein. The claim of Respondents no. 6 & 7 having purchased any land in the said survey numbers from the sons of Ramaiah or Gopalappa is false and fraudulent. Any such sale transactions claimed by the said respondents, in the face of sale deeds in favour of the petitioners is clearly hit by Section 8 of the Transfer of Property Act, read with Section 47 of the Registration Act.

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