1. Since this writ petition is posted for considering the application for disposal of the writ petition at the earliest, it is taken up for final disposal with the consent of the counsel on both sides.
2. In this writ petition, the petitioners who are the legal representatives and sons of one Sri K.S.Laxminarayana Shetty, have challenged the acquisition notifications namely, preliminary notification dated 21/11/1974 (Annexure "M") and final notification dated 19/12/1975 (Annexure "N") and the agreement dated 17/1/2004, executed by the respondent No.2 - B.D.A. in favour of respondent No.4 ac being illegal arid without authority of law and they have sought an order of restraint against the respondents from interfering with land bearing Sy.No.67/2 measuring 34 Guntas situated at Peenya Village, Yeshwanthpur Hobli, Bangalore North Taluk thereinafter, referred to as 'the land in question").
3. It is the case of the petitioners that their father was the absolute owner of the land in question and he had acquired the said property under a sale deed executed by one P.N.P.amachandran, registered on 13/4/1961 and thereafter, the name of the petitioners' father was mutated in the revenue records. That the petitioner's father passed away on 23/7/1998 and thereafter, the petitioners have been in possession and enjoyment of the said land. By an order dated 11/10/1965, the said land was converted from agricultural to non-agricultural purposes and conversion certificate was issued on 8/11/1965 by the Tahsildar, Bangalore North Taluk and thereafter, industrial sheds were constructed by the father of the petitioners, after obtaining the necessary licence and permission from the then Grama Panchayat, Peenya.
4. It is the case of the petitioners that the 4th respondent was trying to interfere with their peaceful possession and enjoyment of the 3 property in question in the month of March 2007 on the premise that the land in question had been allotted to them by the B.D.A. and subsequently, the petitioners became aware that the land of the petitioners was notified on 19/12/1975 for acquisition and that on 15/5/1975 possession was taken and compensation amount has been determined. The petitioners on verifying the details became aware of the fact that preliminary notification in so far as the land in question is concerned along with other lands was issued on 21/11/1974 by the City Improvement Trust Board (CITB) for the purpose of formation of layout called "Industrial Suburb II Stage Rajajinagar", in which, the name of the petitioners' father is at SI.No.6, thereafter, final notification was published in the Gazette on 1/4/1976. According to the petitioners, no notice was served to the petitioners' father and neither have they been heard in the matter; that respondents 2 and 3 have executed a lease agreement in favour of respondent No.4 on 17/1/2004 after a period of 30 years, which is also not in accordance with law. It is the case of the petitioners that the entire acquisition has lapsed since the respondents have not taken possession of the land from the petitioners. They have also stated that they had filed W.P.No.22028/2009 challenging acquisition and the said writ petition was disposed of on 26/8/2009, reserving liberty to the petitioners to file a fresh petition seeking the appropriate relief. Under the circumstances, the petitioners have contended that the entire acquisition has lapsed since the scheme has not been executed and implemented within a period of five years and when the lands were acquired in the year 1974-73, the question of allotting lands in favour of respondent No.4 in the year 2004 i.e., nearly 30 years thereafter would imply that the scheme has not been executed and implemented. They have also contended that there has been violation of principles of natural justice as no opportunity has been granted to the petitioners and that without having passed the award and not paying any compensation to the petitioners; possession of the land could not have been taken by the respondent - authorities. Under the circumstances, the petitioners have sought for quashing of the acquisition notifications as well as toe agreement dated 17/1/2004.
5. In response to the writ petition, respondent No.2 has filed statement of objections contending that the petitioners have no locus stenrji to file writ petition since the father of the petitioner had sold entire land by registered sale deed No.592 dated 1/5/1974 to one B.T.Venkatesh Worthy, even before the acquisition proceedings court commence and that the petitioners' father had lost all right, title and interest in the said lands; that since B.T.Venkatesh Murthy became the owner of the lands, petitioners are not entitled to receive any compensation also; that the petitioners have challenged the acquisition proceedings after nearly 30 years and that the writ petition suffers from delay and latches and the same has to be dismissed on the said ground. That the acquisition proceedings were initiated in the year 1974, the award was passed on 25/4/1979 and possession of the land in question was taken over on 15/5/1979 by drawing up of a mahazar as per Annexure "R-l" and "R-2" ; that acquisition proceedings initiated in the year 1974-75 cannot be challenged at this length of time on the ground that the acquisition proceedings have lapsed and there is no award passed or that possession has not been taken. Therefore, the respondent No.2 has sought for dismissal of the writ petition. It is also stated that the compensation amount determined in respect of the land in question has been deposited before the Court of Addl. Civil Judge, Bangalore and possession has thereafter been taken after passing of the award and hence, there is no merit in this writ petition.
6. I have heard the learned counsel for petitioners, learned Govt. Pleader for respondent No.1 and learned counsel for respondents 2 and 3. Respondent No.4 is served and unrepresented.
7. It is contended on behalf of the petitioners that the acquisition notifications have been impugned in this writ petition on the ground that the acquisition has lapsed since the award has not been passed in time and possession of the land in question has not been taken by the respondent - authorities. He also submitted that in view of the possession of the land in question not being taken by the acquiring authorities, there has been no implementation of the scheme in so far as the land In question is concerned and therefore, under Section 27 of the BDA Act, there has been lapse of acquisition. He also submitted that assuming for a moment that possession has been taken by the respondent - authorities, the said land has not been utilised at all by them and it is only on 17/1/2004 that an agreement has been entered into with the respondent No.4, which agreement is also challenged in this writ petition. Under the circumstances, he submits that the prayers made in me writ petition be granted.
3. Per contra, learned counsel for respondents 1 to 3 by drawing my attention to the statement of objection, have contended that there is no merit in this writ petition; that the acquisition is of the year 1974-75; that the award was passed on 25/4/1979 and thereafter, possession of the land in question has been taken by drawing up of a mahazar on 15/5/1979. Subsequently, notification under Section 16(2) of the Land Acquisition Act, 1894, has also been issued and possession of the land has been taken over by the acquiring authorities and under these circumstances, the petitioners do not get any right to challenge the acquisition. It is also stated that the petitioners father had alienated the land in question in favour of B.T.Venkatesh Murthy and possibly, under the said circumstance, petitioners' father did not have any interest in challenging the acquisition and therefore, the petitioners do not get any right, title or interest to challenge the said acquisition. It is also contended that the contention tfr-jt petitioners' acquisition has lapsed in terms of Section 27 of the SDA Act is also incorrect since the scheme for formation of a layout with Industrial Suburb it Stage Rajajinagar, has been substantially implemented and therefore, the contention of the petitioners that they are entitled to relief under Section 27 of the BDA Act is also not correct. It is also submitted that since the award has been passed, possession has been taken and the same is also notified under Section 10(2) of the Land Acquisition Act, would only imply that the land in question has stood vested with the State Government and thereafter, possession has been handed over to the B.D.A. which has intern handed over possession of the land in favour of respondent No.4 and at this point of time, petitioners have no right to challenge the acquisition and therefore, contended that the writ petition has to be dismissed.
9. In support of his submission, counsel for respondents 2 and 3 has relied upon two decisions of the Apex Court to contend that filing of the writ petition after passing of the award would be belated and also that this Court cannot interfere in writ petitions which are filed belatedly and therefore, this writ petition has to be dismissed.
10. By way of repay counsel for the petitioner contended that there is no delay in filing the writ petitions in as much as the petitioners have continued to remain in possession of the lands in question and it is only when the respondent No.4 tried to interfere with the possession; that the petitioners became aware of the acquisition proceedings; that since the respondent - authorities have not utilised the land in question for the purpose for which it has been acquired, it has to be held that there is lapse of acquisition in so far as the petitioners are concerned and therefore, the relief sought by the petitioners would have to be granted.
11. Having heard the counsel on both sides and on perusal of the material on record, the undisputed facts of the case are that the petitioners father was the owner of the land in question having purchased the same by a registered sale deed dated 13/4/1961. Both in the preliminary as well as the final notification petitioners' father's name has been notified as the kathedar and the said notifications were issued on 21/11/1974 and 1/4/1976. It is also not in dispute that the petitioners' father did not challenge the acquisition proceedings. The contention of the counsel for the B.D.A. that the petitioners' father had sold the land in question to one B T.Verikatesh Murthy has not been admitted by the petitioners. Be that as it may. The fact remains that the B.D.A. has passed an award in the name of the petitioners' father who was the notified kathedar on 11/9/1978.
12. On a perusal of the award dated 11/9/1978, it is seen that the petitioners' father was issued notices under Sections 9, 10, 11 and 14 of the Land Acquisition Act, as the notified kathedar. But in response to the said notice, no claim was made by the petitioners' father for compensation. Under the circumstances, the Special L.A.O. - B.D.A. has recorded as follows:-
"4) My predecessor inspected Sy.No.67/2, Peenya on 24/11/76 and Kenned the mahazar dt. 15/11/76 drawn by the Revenue Inspector. I have also inspected the land on 4/9/78 and found that the land is adjoining Sv.No.66 which is facing main road. The entire land of 0-34 guntas was converted to non-agricutiural purpose in favour of Sri K.S.Lakshmmarayan Setty as per the conversion certificate issued by the Tahsildar, North Taluk, Bangalore, vide No.ALN/SR/380/65-66 dated 8/11/65. Valuation:
5) This Sy.No.67/2 among other survey numbers of Peenya village were notified vide Preliminary Notification No.CITB/ALAO/LA 3/148/74-75 published on 21/11/74 in Karnataka Gazette for the layout called Industrial Suburb II Stage, Peenya village.
Prior to this for this same layout i.e., Industrial Suburb II Stage some lands of Peenya village viz., Sy.Nos.60, 64, 81, 83, 86 and 78 and other survey numbers of Jarakabandekaval and Yeshwanthapur village were notified vide Preliminary Notification No.RDH 33 LTB 59 dated 26/11/59 published on 17/12/59. All these survey numbers are just parent to the survey numbers now notified for the same layout. Therefore, I take the value of the lands fixed for the same layout as the basis. The approved rates for Industrial Suburb II Stage notified during 1959 weie Rs.50000/- and Rs.6000/- per acre for Peenya village. Subsequently the then Additional Land Acquisition Officer passed the award for Sy No.86 of Peenya village or the basis of the order of the District Judge in RA No. 61/68 ordering the compensation of the lands of Jarakabandekaval et Rs. 8,000/- per acre. These Survey numbers are coming within the same layout notified during 1959. As against this award of the Land Acquisition Officer for Rs.8,000/- per acre for Sy.No. 86 of Peenyameasuring 23A.33 gts., the concerned pasties went in appeal under Section 18 for encashment of compensation. In this particular case in Court LAC No.328/73 the Additional Civil Judge, Bangalore has confirmed the same value of Rs.8,000/- per acre for Sy.No.86 of Peenya village as awarded by the Additional Land Acquisition Officer."
9) I. extract shows Smt.K.S.Lakshminarayana Setty has derived title to his land through sale vide CR 699. As per encumbrance particulars for the period from 1/1/65 to 4/10/76 title deeds are deposited by him in Government of Mysore under registered deed No.2824 dated 27/5/73 for a loan of rs. 15,000/-. The fact of release of re dated is not clear. The notified khatedar Sri.K.S.Laksnminarayana Setty has sold away his entire bit for a consideration of Rs. 40,000/- under registered deed No.591 dated 1/5/74 to one Sri B.T.Venkatesh Murthy, this land having been converted on 8/11/65 vide No.ALN.SP.2040 dated 11/10/65 of the Deputy Commissioner Bangalore. As per RTC for 1973-74 to 1976-77, Sn.K.S.Lakshminarayana Setty is shown as Khatedar; but the cultivator's column is blank as the land is converted one to non-agricultural purpose. The Tahzildar vide letter No.LRF/PR/139/76-77 dated 24/11/76 has intimated that there are no claims under Land Reforms Act in this survey number.
9(i) The encumbrance certificate shows sales of 18 fragments formed into sites by the said purchaser Sri B.T.Venkatesha Murthy commencing from 2/5/74 to 24/7/74 as detailed hereunder:
Sl. Date of Consider Extent Claimant Registered No. Execution -ration Deed No.
1. 2/5/74 6000 60X45+42 M.Fampath Kumar 599 Site Nos. 2
2. 2/5/74 2000 40X34+30 M.Sampath Kumar 600 Site No. 5 -
3. 2/5/74 3000 32+35 X 41+47 N.B.Ssstry 601 Site No. 12
4. 2/5/74 3000 40X30 C.Lakshim 608 Site No. 7 Vanajakshi
5. 2/5/74 300C 10/30 Dasegowda 609 Site No. 8
6. 2/5/74 3000 45 X M E.C.Ramu 612 Site No.?
7. 2/5/74 3000 45 X 30+35 Sarojamma 611 Site No. 4
8. 2/5/74, No.C 3000 40 X35 M.R.Srinivasaiya 613
9. -de- Site 3000 45X30 B.R.Rangaswamy 614 No. 3
10. -do- No.34 3000 30X40 S.Venkatesha 615
11. -do- No.lA 3000 45X30 N.P.Gopal Krishna 616
12. -do- 14, 15 3000 41+40 X 65+80 S.J.Rajarathnam 617
13. -do- 16 2000 30X60+65 T.Srinivasan 619
14. 5/6/74, NO.9 3000 40X30 B.N.Nethravathi 1281
15. 24/6/74, 5000 45 X 68+67 Siddagangamma 1705 No.l
16. 24/7/74 2500 30 X 50+60 C.Channasomanna 2856
NO. 17 - 36+48X3 N.Narasimhaiah 2360
30X48+50 M.Ramaiah 2363
17. 24/7/74 1000 No. 19
18. 24/7/74 2500 No. 18
9(H) The claimants in this case who have responded are Sriyuths (1) T.Srinivasan (SI. No. 13), (2) Siddagangamma (si.No.15), (3) L.Lakshmi (not in the E.C) and (4) N.Sampath Kumar (Si.No.l S 2) who have enclosed unattested copies of the deeds of purchase of the sites. Claims from others are not received.
9(lii). Though the valid purchase of the land is by Sri B.T.Venkatesha Murthy from the original owner, the fact of release of the title deed made in favour of Government of Mysore is nor made out from any claimant. In the absence of the same it is ambiguous about the clearance. It is also not made out whether the entire plot or 34 gts. Is sold out by Sri B.T.Venkatesha Murthy, nor there is the approved plan of layout and identifiable plot held by each purchaser is also not available. In the absence of the above, it is hard to conclude the claimants to whom the compensation can be apportioned. Hence, I propose to refer the case to me Court of the Additional Civil Judge, Bangalore for adjudication of the quantum payable to each depositing the awarded sum of Rs.18,083-75 as required under Section 30 and 31 (2) of L.A.Act. The known claimants as per E.C. required to be served with award notices under Section 12(2) of the L.A.Act. The land revenue on the land shall abate."
The Revenue and Survey Departments will make necessary changes in their respective records. i e B.T.Venkatesh Murthy, who has validly purchased the date.
13. From the above, it becomes clear that the petitioners' father had not made any claim for compensation and that he had created a mortgage in respect of the land in question and had also sold away the said land for a consideration of Rs.40,000/- b/ a registered sale deed No.392 dated 1/5/1974 to one B.T.Venkatesh Murthy; that the said purchaser had formed 18 sites, the details of which are also given above. However, since it was not clear as to whether the documents pertaining to the tend in question were released by the erstwhile Government of Mysore from mortgage and as to whether the said documents were handed over to the purchaser penal land in question, it was a decided to deposit the compensation amount before the competent Civil Court; that there was also a direction to serve notices of the award under Section 12(2) of the Land Acquisition Act, as per the details in the Encumbrance Certificate. Subsequently, by a mahazar drawn on 15/5/1979, possession of the land in question has been handed over to the B.D.A., which is evident from Annexure "R-z". A perusal of the notification issued under Section 16(2) of the Land Acquisition Act, would also make it clear that the land in question i.e., Sy.No.67/2 measuring 34 Guntas was taken possession on 15/5/1979. As per the Karnataka Amendment of the Land Acquisition Act, the issuance of notification under Section 16(2) of the Act is an evidence of taking of possession. A copy of the said notification is furnished by the counsel for the B.D.A. Therefore, the contention of the petitioners that no award has been passed in respect of the land in question and that the possession has not been taken is without any substance and hence is rejected.
14. As far as the other contention of the counsel for the petitioner is concerned, which is pertaining to Section 27 of the Act, the said contention is also pressed into service on the premise that since possession of the land in question has not been taken over by the B.D.A., the scheme in so far as the land in question has not been implemented and therefore, the acquisition has lapsed. Section 27 of the B.D.A. Act states that if within a period of five years from the date of publication in the Official Gazette of the declaration under sub-section (1) of Section 19 of the Act, the authority fails to execute the scheme substantially, the scheme shall lapse and die provisions of Section 36 shall become inoperative. It is necessary to note that the said section is in the context of the entire scheme and not relatable to any piece of land acquired under a notification. It is also necessary to note that even if a scheme lapses, acquisition would not lapse. However, in the instant case, the contention of the counsel for the petitioner is only with regard to the lapse of acquisition in so far as the land in question is concerned. Under such circumstances, Section 27 of the Act cannot be applied. There is no material placed on record by the petitioner to demonstrate that the scheme has not been substantially implemented in so far as the acquisition for Industrial Suburb II Stage Rajajinagar is concerned. Therefore, the reliance placed on Section 27 of the Act is wholly misplaced in the instant case.
15. The other contention which has been raised by the counsel for the petitioner is with regard to the agreement entered into by the B.D.A. with the respondent; No.4 dated 17/1/2004, a copy of which is produced at Annexure "P". When once the land in question has stood vested with the State Govt, and thereafter, possession of the same has been handed over to the B.D.A., the utilisation of the said land by the B.D.A. cannot be a subject matter of challenge vis-a-vis acquisition of the land in question. Therefore, the petitioner cannot seek to challenge the agreement dated 17/1/2004 in the context of the challenge made to the acquisition proceedings.
16. At this stage, it is necessary to note that the acquisition proceedings were initiated in the year 1974 by the erstwhile CTTB and the award was passed in 1978 and possession was also taken and the petitioners have not bothered to challenge the said acquisition until filing of the W.P.N 0.22028/2009, and the said writ petition was withdrawn on the ground that the prayers made in the writ petitions were misconceived and therefore, liberty was reserved to the petitioners to file a fresh writ petition seeking appropriate relief. The prayer sought in the present writ petition are identical to the prayer sought in the earlier writ petition. Infact, the lapse of acquisition which has been raised as a contention has not been a prayer to seek quashing of the notifications. Therefore, the fact that the petitioners have not sought appropriate reliefs in this writ petition and the withdrawal of the earlier writ petition so as to file a writ petition seeking appropriate reliefs is of no avail. At this stage, it would also be necessary to advert to the fact that acquisition of the year 1974-75 is sought to be challenged in the year 2009, therefore the writ petition suffers from gross delay and latches. In this context, it would be proper to refer to the decision of the Apex Court in the case of Northern Indian Glass Industries v. Jaswant Singh and Others [2003 (1) SCC 33SJ //herein, the Apex Court held that when writ petitions were filed 17 years after the date of the award, it could not be entertained and non-payment of any compensation is not a ground to condone the delay and latches in filing the writ petition. In the said case, the Apex Court also held that land vested with the State free from all encumbrances. Even if the land is not used for the purpose for which it is acquired, the land owner does not get any right to ask for retesting the land in himself. It is also at the wisdom of the State Government to exclude the lands from acquisition and the owner of the land cannot challenge the acquisition when once the land stand vested with the State Government. It is also relevant to note that the petitioners have not filed any writ petition challenging the acquisition at the earliest point of time. At this point of time, petitioners would not have any better right to challenge the said acquisition. Therefore, there is no merit in this writ petition.
17. In the result, the writ petition is dismissed. Parties to bear their own costs.