K. NANJUNDASWAMY Vs. THE. COMMISSIONER

JUDGEMENT

(1.) THE appeal coming on for admission, is heard at length. The appeal is admitted The appellant was the plaintiff before the Trial Court and is admittedly the owner of the suit property. He had filed a suit against the respondent -Bangalore Development Authority (hereinafter referred to as 'the BDA' for brevity), seeking the relief of declaration that the plaintiff was the owner of the suit property and restraining the BDA from interfering with his possession. It is not disputed that the said suit property was notified for acquisition by the State Government under the Bangalore Development Authorities Act, 1976 (hereinafter referred to as 'the BDA Act', for brevity), by a notification dated 29.05.1978 under Section 17 of the BDA Act for formation of the Hennur -Bellary Road II Stage Layout. Subsequently, yet another notification was issued under the Land Acquisition Act, 1894 under Section 4(1) dated 22.12.1984 intending that the lands notified therein are to be acquired for the benefit of House Building Co -operative Societies. Incidentally, the very lands notified under the earlier notification under Section 17 of the BDA Act were sought to be withdrawn from such notification, by the subsequent notification. This however did not include the appellant's land and the suit property. Therefore, the appellant had approached this court in its writ jurisdiction in a writ petition in W.P. No. 11030/1985. The writ petition was disposed of with an observation that the appellant could approach the Screening Committee of the BDA and seek regularization of any construction on the suit property. The appellant thereafter filed a Review Petition in C.P. No. 187/1989 before the very learned Single Judge, pointing out that the suit property which was the subject matter of the first notification was excluded from the second notification and therefore, it was not withdrawn from the notification issued in the first instance. The writ court then observed that, if it was not so withdrawn, it shall enure to the benefit of the appellant and disposed of the Review Petition. It is then that the present suit came to be filed. The suit had been contested by the BDA to point out that if the land was the subject matter of acquisition, the Civil Court would not get jurisdiction and it is on that primary ground that the suit has been dismissed. Insofar as the dismissal of the suit on the point of law that, if the land in question in a suit is the subject matter of acquisition proceedings, a civil court would not get jurisdiction, is the well -settled legal position. There are a line of cases in this regard and the latest being, STARTLAWFINDERCommissioner, Bangalore Development Authority vs. Brijesh Reddy and another (2013) 3 SCC 66ENDLAWFINDER. Therefore, the present appeal would have to be rejected at the outset.

(2.) THOUGH the learned counsel for the appellant would point out that the appellant would then be left without any remedy and would point out that he had already approached the writ court in respect of his grievance and having regard to the orders passed therein, it would be a futility now to again approach the writ court notwithstanding that though the land was notified for acquisition in the year 1978 and though there was also a final notification under Section 19 in respect of the suit property in the year 1985, no further steps had been taken to pass an award or to take physical possession of the land. However, the threat of the BDA taking forcible possession of the land looms large and hence, he is left with no remedy whatsoever and seeks that there be a reconsideration to protect his possession. Insofar as the contention that the appellant had already approached this court in its writ jurisdiction and he would be precluded from approaching it over again, may not be the correct position, if indeed the earlier order of this court was of the year 1989, when only four years had elapsed from the date of the final notification of the year 1985 and therefore, if subsequently there has been no further development in the BDA taking recourse to the provisions of the Act and taking possession of the land and if the scheme has not been implemented pursuant to the acquisition, the scheme would have lapsed, in which event, it is open for the appellant to approach this court in its writ jurisdiction and seek quashing of the acquisition proceedings on that ground. This observation is made at the instance of the counsel for the appellant who was apprehensive that this court on the writ side would turn him out on the ground that he had already approached the court in its writ jurisdiction. Therefore, the appellant may approach the court and test his case insofar as the acquisition proceedings having been rendered bad on account of non -implementation of the scheme. The above are general observations in dismissing the appeal and therefore, any contentions available to either of the parties before this court on the writ side, are left open. The appeal stands dismissed accordingly.