LAWS(KAR)-2012-11-168

K. PUSHPAVATHI WIFE OF R. MAHADEVA AND OTHERS Vs. STATE OF KARNATAKA, DEPARTMENT OF URBAN DEVELOPMENT AUTHORITY, M.S. BUILDING, BANGALORE, BY ITS SECRETARY, BANGALORE DEVELOPMENT AUTHORITY, KUMARA KRUPA WEST, BANGALORE, REPRESENTED BY ITS COMMIS

Decided On November 02, 2012
K. Pushpavathi Wife Of R. Mahadeva Appellant
V/S
State Of Karnataka, Department Of Urban Development Authority, M.S. Building, Bangalore, By Its Secretary, Bangalore Development Authority, Kumara Krupa West, Bangalore, Represented By Its Commis Respondents

JUDGEMENT

(1.) HEARD Shri Jayakumar S. Patil, Senior Advocate appearing for the Counsel for the petitioners and the Counsel for the respondents. The facts are as follows: - It is the claim of the petitioners that the land bearing Survey No. 49/4, Bommanahalli Village, Begur Hobli, Bangalore South Taluk, measuring 1 acre 81/2 guntas was the ancestral property of one late Ramaiah, son of Nagappa. After his death, it had fallen to the share of his wife Gowramma. Gowramma, in turn, had sold the property to one Gullappa under a registered sale deed dated 13.7.1934. The record of rights in respect of the property indicated the name of Gullappa. Gullappa, in turn, is said to have sold the property in favour of M/s. Transport Corporation of India (Hereinafter referred to as 'the TCI' for brevity) under a sale deed dated 26.11.1962. Subsequent to the purchase, the TCI had got the property converted to non -agricultural use, as per Conversion Order dated 18.10.1965 and this is also reflected in the revenue records. The transfer of ownership in favour of TCI is also reflected in the revenue records. It is claimed that the TCI had, in turn, sold the entire extent of the suit property to one Mariyappa, son of Rangappa, under a registered sale deed dated 16.3.1975. The Tahsildar had issued an endorsement dated 31.10.1975 reflecting the mutation entry in favour of Mariyappa. Pursuant to which, Mariyappa is said to have proposed the formation of a layout and had obtained sanction from the Bommanahalli Group Panchayat in this regard. The petitioners herein namely, 2, 3, 5, 8, 9, 10 and 11 are the grand children, petitioner no. 6 is the son and petitioner no. 7 is the daughter -in -law of the said Rangappa. Petitioner no. 1 is the wife of petitioner no. 3. Petitioner no. 4 and other petitioners are again related to Rangappa. Under a registered will dated 14.6.1976, Rangappa had bequeathed all the properties, including the property which is the subject matter of this petition, in favour of his six children. After the death of Rangappa, in terms of the bequest, the names of the children are reflected in the revenue records. The land in Survey No. 49/4 was renumbered as 197 and it was further sub -divided into six portions, namely, 197/1 to 197/6. In terms of the allotment under the will, the respective beneficiaries had paid taxes to the Village Panchayat in respect of their share of the property. It is stated that the property in question is under the purview of the City Municipal Council, Bommanahalli and subsequent to the death of Mariayappa, it is the claim of the petitioners that the subject property had fallen to the share of Gowramma and the property stood in the name of Gowramma during the year 1987 and in view of the partition effected in the year 2004, it had fallen to the share of petitioner no. 5. Similarly, khata 197/3 had fallen to the share of petitioners 9 to 11 and their two sisters. The details of the allotment of the extent of lands are indicated hereunder in a tabular form: - The petitioners have been paying taxes to the competent authority. They had sought amalgamation of the property and the Assistant Revenue Officer, Bommanahalli, by an order dated 14.5.2008, had amalgamated the several khata numbers into one number namely, 502/472/365/49/4/6, 7 and all the numbers were deleted. It is further stated that a portion of the land had been acquired by the National Highways Authority to form Bangalore -Hosur Highway on two occasions, namely in the year 1995 and in the year 2007. It is further stated that the petitioners had received the compensation in respect of the acquisition under protest and the same was pending in Proceedings in LAC 24/1996 before the Principal Civil Judge (Senior Division), Bangalore Rural District, Bangalore and an award came to be passed by an order dated 27.6.2006. Therefore, by that circumstance, the petitioners' claim over the property is clearly established. It is further stated that pursuant to the approval of the layout plan by the Bommanahalli Group Panchayat, the petitioners had put up construction of 32 independent shops and two godowns in the property in question. It is stated that in the first acquisition proceedings by the National Highways Authority in the year 1995, all the 32 shops had been acquired and they were paid compensation in respect of the vacant land as well as the structures. Subsequent to such acquisition, it transpires that the petitioners had again constructed another set of 32 shops, which was subsequently acquired in the year 2007 by the National Highways Authority and compensation was paid in respect of such acquisition as well. It is in this background that it is claimed that respondent no. 2 and its officials had visited the subject property and had proceeded to demolish a shed on the said property. It is only as on 18.9.2010, when without any ceremony, respondent no. 2 and its officials visited the subject property and began to demolish the shed existing on the said property, that it was strongly resisted by the petitioners, on the footing that there are owners of the land and are in possession of the property prior to 1970 and such possession has not been disputed and has, in fact, been endorsed by the several authorities as evident from the circumstances. It is only thereafter, by hindsight, that the petitioners were informed of the acquisition proceedings, by virtue of a preliminary notification and a final notification and an award having been passed under a development scheme for the formation of a layout called "Between Hosur Road and Sarjapur Road", which is popularly known as HSR Layout. It is thereafter that the petitioners had obtained further details by recourse to the provisions of the Right to Information Act, 2005 and have learnt that the BDA had initiated proceedings under Section 17 of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as 'the BDA Act' for brevity) dated 15.12.1984 and a final notification under Section 19 of the Act had been issued on 28.11.1986 and an award dated 30.4.2010 had been passed. It is in this background that the petitioners seek to explain the delay in approaching this court in challenging the acquisition proceedings.

(2.) THE learned Senior Advocate in the above circumstances, would submit that there is no indication that there was any service of notice on any of the petitioners, whose names certainly appeared in the revenue records from the earliest point of time and since the law requires as a mandate that the authorities ought to issue notice to persons whose names are reflected in the assessment list of the local authority and the land revenue register, it is inexplicable that there is no service of notice on the petitioners whatsoever. It is also significant that the preliminary notification in respect of the properties did not reflect the names of the petitioners, though their names are shown in the revenue records even prior to the year 1970 and this lacuna is also reiterated in the final notification, which clearly vitiates the acquisition proceedings. The respondents have also proceeded without reference to the acquisition proceedings initiated by the National Highways Authority not once, but twice, over the years, namely, in the year 1995 as well as in the year 2007 as stated hereinabove and therefore, the possession of the petitioners not being in serious dispute, as is reflected from the records available, the acquisition proceedings having gone on without reference to the present petitioners and behind their back, should not disentitle the petitioners to challenge the same even at this point of time. It is further contended that even otherwise, the second respondent -authority has not substantially implemented the Scheme and in terms of Section 27 of the BDA Act, the Scheme lapses and Section 36 of the BDA Act becomes inoperative. More importantly, the learned Senior Advocate would submit that notwithstanding that the proceedings are vitiated on account of the above, the significant circumstance is that admittedly, an award is said to have been passed as on 30.4.2010, though the final notification is dated 28.11.1986. Therefore, there is no explanation forthcoming insofar as the inordinate delay in passing the award, which has the effect of pegging the value for the purpose of determining the compensation to the disadvantage of the petitioners. In this regard he would submit that the apex court, while considering such a circumstance in the case of Ramchand and others vs. Union of India, (1994) 1 SCC 44, at Paragraphs 25 to 27, has expressed its displeasure in the authorities proceeding in a situation such as the present one and that the said case would apply on all fours to the present case. Therefore, the learned Senior Advocate would submit that the proceedings are vitiated on more than one ground and even if the delay, though amply explained by the petitioners in the present case on hand, is an impediment to reverse the acquisition proceedings by this court. The petitioners being afforded just compensation on the footing that an award ought to have followed a final notification within a reasonable time and therefore, the compensation that would be payable ought to be with reference to such reasonable period, is a circumstance, which would have to be kept in view in considering the case of the petitioners and granting appropriate reliefs. The learned Senior Advocate would submit that it would be just and proper to allow the petition as prayed for. It is further submitted that in respect of similarly placed petitioners, who were before this court in a writ petition in WP 6354 -56/2011, having regard to the inordinate delay, which is not explained by the petitioners, this court, having discussed a catena of decisions on the point in question and placing reliance particularly on, Ramchand's case supra, has proceeded to quash the proceedings insofar as the said petitioner was concerned. The present petitioners are on the same footing and are aggrieved by identical circumstances and by a parity of reasoning, the learned Senior Advocate would submit that the petition be allowed.

(3.) THERE is ample material produced before this court to indicate the sequence of events insofar as the petitioners' claim over the subject property is concerned. As rightly pointed out by the learned Senior Advocate, a portion of the land was the subject matter of the acquisition proceedings by the National Highways Authority, which is again an authority, which has followed the procedure in acquiring the land and the petitioners were certainly identified as the khatedars and owners in possession and had even received compensation in respect of acquisition of portions of their land for road widening. Therefore, the claim of the petitioners cannot be brushed aside on the ground that the petitioners are making a self -serving claim as to their continued occupation of the land in question over a period of time. The claim of the petitioners that the khatedars were duly notified and the khatedars, as reflected in the record of rights as on the relevant date, were not the petitioners, is a claim that is not supported by any material placed on record. On the other hand, the petitioners have placed adequate material to indicate that they were indeed recognised as the khatedars. Though the sanction obtained of the layout plan, whether was in accordance with law or not, is not the subject matter of this writ petition and even construction having been put up therein, it follows that the petitioners were never notified of the acquisition proceedings at any point of time. Further, Section 17(5) mandates that the acquiring authority shall indicate the names of the owners as appearing in the assessment list of the local authority. Since Annexure -G series to the petition clearly indicate that the petitioners were indeed the khatedars shown in the assessment list of the local authority, it is inexplicable for the respondents to contend that the khatedars had been notified and the petitioners cannot claim that they were khatedars and is a submission that is negated on the face of it. Further, the more significant circumstance that the respondent - BDA has passed an award in the year 2010 prior to the filing of the writ petition, though the final notification is of the year 1996, would clearly be a circumstance, which has been contemplated by the Supreme Court in Ram Chand's case, supra and the Supreme Court has held in Paragraphs 25 to 27 as follows: