M. MUKUNDA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned Senior Advocates, Shri. Shashikiran Shetty and Shri. Udaya Holla, appearing for the Counsel for the petitioner Nos.1 and 2, respectively and the learned Additional Government Advocate appearing for respondent No.1 as well as the learned counsel for respondent No.2.

(2.) The facts are that the petitioners are said to be the owners in possession of land bearing Survey No.18/2 measuring 1 acre 33 guntas of Hulimavu village, Begur Hobli, Bangalore South Taluk. The land originally belonged to one N.Muthappa, son of Pillaiah, who is said to be the father of the petitioners. After the death of the father of the petitioners, the petitioners claim to be in possession. The RTC for the year 2011-12 discloses that the petitioners are in possession of the lands in question. The land in question was notified for acquisition by the second respondent, namely, the Bangalore Development Authority (BDA) for the purpose of formation of Byrasandra-Tavarekere-Madivala VI Stage Layout. The preliminary notification was issued on 8.9.1987 and the final notification was issued on 28.7.1990 in respect of an extent of 2 acres and 2 guntas. It was also disclosed that there was a symbolic possession said to have been taken on 17.5.1994 in terms of Section 16(2) of the Land Acquisition Act, 1894 (hereinafter referred to as the "LA Act" , for brevity).

(3.) It is the case of the petitioners that though such notification has been issued, physical possession of the land has never been divested of the petitioners and it has not been utilized for any purpose by the BDA and insofar as the total land acquired, the scheme has not been implemented, in that the total extent acquired was 562.34 acres. Though the preliminary notification was proposed to acquire 805.21 guntas, and the final notification dated 28.7.1990, was issued only in respect of 562.34 guntas, it is not denied that the layout has been developed over an extent of only 49.03 acres and such developed layout did not extend over the land in question. Therefore, the petitioners claim that Section 27 of the Bangalore Development Authority Act, 1976 (hereinafter referred to as the "BDA Act", for brevity) would require the Scheme to be implemented substantially within a period of five years from the date of final notification, for otherwise the Scheme lapses. In the present case on hand, the admitted development of the Scheme for the formation of the layout to an extent of 49 acres would not indicate that there is substantial implementation of the scheme. Consequently, the scheme would lapse for the rigour of section 27 of the BDA Act is attracted. Consequently, section 36 of the BDA Act would also render the application of the LA Act as impermissible, in which event, the acquisition itself lapses. Even otherwise, the learned Senior Advocate would submit that when physical possession cannot be demonstrated to have been taken from the petitioners, the acquisition in any event would lapse by sheer efflux of time and hence, the question as to whether possession has been taken is only with reference to the notification issued under Section 16(2) of the LA Act.