S.M. KANNAIAH Vs. THE STATE OF KARNATAKA

JUDGEMENT

(1.) THE petitioner is before this Court assailing the notification dated 23.03.2009 (Annexure -G) issued by the first respondent. By the said notification, the earlier notification dated 05.10.2007 by which the lands belonging to the petitioner which had been de notified in exercise of the power under Section 48 (1) of the Land Acquisition Act was cancelled. The second respondent has filed the objection statement opposing the petition to which a rejoinder has been filed by the petitioner. Heard Sri K. Suman. learned counsel for the petitioner. Sri. Udaya Holla, learned senior counsel for Sri G. Shankar Goud, learned counsel for second and third respondents and Sri R.B. Sathyanarayana Singh, learned Government Advocate for the first respondent.

(2.) AT the outset, it is to be noticed that the original petitioner has expired during the pendency of the instant petition and his legal representatives are presently prosecuting the petition. They are jointly referred as petitioner with reference to the original petitioner. The brief facts leading to the present circumstance is that the land bearing Sy No. 55/2 of Malagalu Village. Yeshwanthapura Hobli. Bangalore North Taluk, measuring 3 acres 34 guntas was notified for acquisition by the Bangalore Development Authority ('the BDA' for Short) for formation of Nagarbhavi II Phase Layout under the preliminary notification dated 15.07.1982. Though the petitioner filed the objection statement, the Acquiring Authority did not accede to the same. Accordingly. the final notification dated 05.08.198 -5 was issued. Though the petitioner had called in question the acquisition in W.P. No. 2272/1987 and the acquisition notifications were stayed by this Court on 09.03.1987, the petition was ultimately dismissed.

(3.) THE legal position is well settled that the power under Section 48(1) of the LA Act can be exercised only in respect of the notified property of which possession has not. been taken by the Acquiring Authority. In the instant ease, at the first instance, the denotification was ordered since the Acquiring authority appears to have been satisfied that the possession was not taken. However, the impugned notification dated 23.03.2009 (Annexure -G) was issued wherein it is depleted that possession of the land was taken on 18.02.2002 and as such the earlier order of denotification is being withdrawn. This assertion of having taken possession is seriously disputed by the petitioner. On the other hand, the BDA has contended that the possession was taken under the Mahazar which was prepared at the spot in the presence of the witnesses.