KHODAY R.C.A. INDUSTRIES, NO. 9, SHESHADRI ROAD, BANGALORE,-560009, REPRESENTED BY ITS PARTNER, MR. K.L. SWAMY AND KHODAY INDUSTRIES PRIVATE LIMITED, NO. 9, SHESHADRI ROAD, BANGALORE-560009, REPRESENTED BY ITS PARTNER, MR. K.L. SWAMY Vs. THE STA

JUDGEMENT

(1.) THE facts of the case are as follows : - Petitioner no. 1 is said to be a constituent of a partnership firm, namely, M/s. Khoday Eshwarsa and Sons. Petitioner no. 2 is a private limited company. The petitioners are said to be engaged in the business of trading, manufacture and sale of liquor. The petitioners had purchased the lands in Konanakunte, and Doddakalasandra, Bangalore South Taluk, during the period 1967 to 1973 and claim to be in possession of the same and are said to have set up their manufacturing unit and administrative offices in the said lands. By a notification issued under Section 17(1) of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the 'BDA Act', for brevity) dated 17.11.1988, the lands in question were sought to be acquired for the formation of Jaya Prakashnarayan Nagar 9th Stage Layout and a declaration was made under Section 19(1) of the BDA Act dated 22.7.1991. The said notification under Section 19(1) was subject matter of challenge in several writ petitions by the land owners, whose lands were notified for acquisition. A learned Single Judge of this Court in writ proceedings in WP 4046/1993, has quashed the notification by an order dated 27.9.1996, on the ground that the same had been issued without the mandatory sanction under Section 18(3) of the BDA Act, thereby rendering the acquisition void. However, liberty was reserved to the acquiring authority to initiate fresh acquisition proceedings. The said writ petition having been referred to a division bench, the division bench had decided on the applicability of Section );">6 and Section );">11A of the Land Acquisition Act, 1894 (Hereinafter referred to as the 'LA Act', for brevity) to acquisitions under the BDA Act and had dismissed the petitions by order dated 6.3.1997, without otherwise addressing the factual matrix of any of the petitions. However, the other petitioners had challenged the order of the division bench before the apex court, which decided the case by its judgment dated 27.2.2002, observing that the Bangalore Development Authority (Hereinafter referred to as the 'BDA', for brevity) had accepted the judgment of the learned Single Judge in WP 4046/1993 and the same had become final and therefore, the final notification issued without the required mandatory sanction under the BDA Act was invalid. The petitioners claim that they have been in possession of the land in question and continued to be in possession as on the date of the petition. The petitioners are said to have made applications seeking grant of conversion of lands for industrial purposes. Petitioner no. 1 is said to have made three applications dated 17.3.2011 and 25.3.2011 in respect of several items of land, in terms of Annexures -G, G1 and G.2 to the writ petition. Similarly, the second petitioner had also made an application dated 17.3.2011 seeking conversion of land in Doddakalasandra in terms of Annexure -G.3. The second respondent, on receipt of the applications, is said to have sought for a No Objection Certificate from respondent no. 5 -the planning authority. The said respondent had informed the second respondent that the lands were classified as for industrial use under the Zonal Regulations in terms of the approved revised Master Plan 2015 and any Conversion Certificate could be granted on identifying an approach road and after obtaining opinion on the status of acquisition of the said lands from the BDA. It transpires that the Special Land Acquisition Officer of the BDA, had submitted reports dated 30.6.2011, 2.7.2011, 17.9.2011 and 14.6.2011, to report that the lands, for which Conversion Certificates were sought, were notified for acquisition under the 1991 final notification, for the formation of Jaya Prakashnarayan Nagar 9th Stage layout. Significantly, it was indicated that though the lands were so acquired, no award has been passed nor possession is taken by the State Government. Based on the above reports, the fourth respondent had issued an endorsement refusing to grant conversion certificates notwithstanding that the fourth respondent had stated that no award had been passed nor possession had been taken, therefore indicating that the acquisition had remained incomplete. It is also the case of the petitioners that three items of land in survey Nos. 35/1, 35/2 and 36/2A in Doddakalasandra were not notified for acquisition. But inspite of the same, the second respondent had refused to grant conversion on a misconception that the same were also subject matter of the acquisition proceedings. This was an indication of the mechanical functioning of the second respondent. It is in the above background, that the present petitions are filed, claiming that the acquisition proceedings have lapsed and therefore, the rejection of the applications of the petitioners seeking conversion is bad in law and unsustainable.

(2.) THE learned Senior Advocate Shri D.L.N. Rao, appearing for the Counsel for the petitioners, while reiterating the above sequence of events, would emphasize that the final notification was of the year 1991, but there is no dispute that no award under Section );">11 of the LA Act has been passed and possession of the lands also has not been taken. This inaction for the past two decades from the date of final notification would automatically result in the acquisition proceedings having lapsed and the same cannot be acted upon. The apex court has also declared that the final notification dated 22.7.1991 was issued without the required mandatory sanction and was invalid. Notwithstanding that there is no time -frame prescribed under the BDA Act, for making an award, or for taking possession of the land, it is established and is the settled law, that even in the absence of any such time frame being prescribed, the said procedure ought to be complied with within a reasonable time and since no award has been made even after a lapse of 20 years and even if there is any attempt by the State Government to make an award after the expiry of such a long period, the same would be futile because, the reasonable time contemplated in law has lapsed. It is contended that the apex court, in a large number of decisions, has repeatedly laid down that even though an award is passed, if no physical possession is taken within a reasonable time, the acquisition proceedings would lapse. In the instant case, as no attempt was made by the State Government to even make an award and take possession of the lands, the acquisition proceedings have lapsed and neither the State Government nor the BDA would have any right over the land in question. Reliance is placed on the following authorities in support of the above contentions: 1. Muniyamma vs. State of Karnataka, 2007 (5) KLJ 11, 2. Bangalore Development Authority vs. Muniyamma and others, WA 936/2007

(3.) STATE vs. Gokul Educational Foundation, 2005 (6) KLJ 429,