V. A. Narasimha Reddy and Others Vs. Government of Karnataka, Urban Development Department and Others - Court Judgment

1. In these writ petitions the petitioners have prayed for the following reliefs.

i. Issue a writ of certiorari or any other writ, order or direction quashing Notification in No. BDA/SLAO/A5/RR/45/2006-2007 dated 29.05.2007 order Section 16(2) of the Land Acquisition Act insofar as schedule property is concerned vide Annexure P1.

ii. Issue a writ of certiorari or any other writ, order or direction quashing the allotment of any portion of schedule property in favour of respondent Nos. 4 to 6 as per sale deeds dated 14.02.2009 and 04.04.2009 vide Annexure T and T1 and

iii. Issue a writ of mandamus, order of any other writ, order or direction directing the respondents to withdraw schedule property viz., Sy. No 107 of Bada Manavarthi Kaval Village, Kengeri Hubli, Bangalore South Taluk to an extent of 4 Acres from acquisition as per preliminary Notification No. BDA/SLAO/A4.PR:194/2002-2003 at Annexure F dated 7.11.2002 and final notification No. UDD/750/MNX/2003 dated 09.09.2003 at Annexure H.

2. Petitioners contend that they are the owners of 4 acres of agricultural land in survey No. 107 of B.M. Kaval village having acquired the same under a registered sale deed dated 06.10.1989 in the name of petitioner no. 3. The land in question was acquired out of the joint family funds of the petitioners in the name of petitioner no. 3 Respondent no 2 herein issued a preliminary notification on 07.11.2002 under Section 17(1) of the Bangalore Development Authority Act (for short ‘the BDA Act’) proposing to acquire total extent of 1532 acres 17 guntas of land in the villages Vaajrahalli, Hosahalli, Uttarhalli Manavarthi Kaval, B.M. Kaval, Raghuvanahalli, Thalaghattapura, Thurahalli and Gubbalalu. In this preliminary notification the land belonging to the petitioners in survey No. 107 of B.M. Kaval was also included. The petitioners filed their objections opposing the proposed acquisition. Respondent No. 1 without considering the objections filed by the petitioners issued a final notification 09.09.2003 under Section 19(1) of the B.D.A. Act. In this final notification the respondents have only notified 750 acres as against 1532 acres 17 guntas notified in the preliminary notification. Even after the final notification respondent Nos. 2 and 3 have denotified certain lands. Even during the pendency of these writ petitions the respondent Nos. 2 and 3 have also denotified certain lands.

3. Petitioners gave a representation on 03.10.2003 requesting the respondent Nos. 2 and 3 to drop the proceedings insofar as their lands are concerned. Again on 02.03.2005, 29.11.2005 and 18.01.2006 the petitioners gave representations requesting respondent Nos. 2 and 3 to denotify their lands. Despite repeated requests and representations, respondent Nos 2 and 3 have not passed any orders.

4. The petitioners contend that respondent Nos. 4 to 6 are the owners of 5 Acres 12 guntas in survey No. 226 of B.M. Kaval and the same was included in the preliminary notification dated 07.11.2002. Yielding to the pressure of respondent Nos 4 to 6 their land was left out in the final notification dated 09.09.2003. Respondent Nos 2 and 3 without any authority of law executed a registered sale deed dated 18.02.2009 in favour of respondent Nos. 4 to 6 to an extent of 1163.52 Square Meters out of land belonging to the petitioners in survey No. 107 of B.M. Kaval. Further the BDA under a registered sale deed dated 04.04.2009 sold to an extent of 712.18 Square Meters out of the land belonging to the petitioners in favour of respondent No. 5. In these sale deeds it is stated that respondent Nos. 4 to 6 have voluntarily surrendered a portion of their land in survey No. 226 of B.M. Kaval for the formation of a road in the layout and therefore they have re-conveyed a portion of the land acquired in Sy.No. 107 of B.M. Kaval. This act on the part of the respondent Nos. 2 and 3 is illegal, arbitrary and discriminatory.

5. The petitioners contend that some of the land owners whose land was notified in the preliminary notification and final notification approached this Court in W.P. Nos. 44949/2003 and 20875-20938/2001. This Court disposed these writ petitions with certain directions. Contrary to the directions given by this Court the respondent Nos. 2 and 3 have denotified the lands and re-conveyed the lands. Aggrieved by these illegal acts of respondent Nos. 2 and 3 the petitioners are before this Court.

6. Respondent Nos. 2 and 3 have entered appearance and filed statement of objections inter alia contending that these writ petitions are liable to be dismissed on the ground of delay and laches. Respondent Nos. 2 and 3 after considering the objections filed by the petitioners and others issued final notification and left out the lands that are not necessary. Subsequently the award is passed on 12.12.2003 and the same is approved by the Government. Possession is taken over and the same was handed over to the Engineering Section of the BDA on 09.01.2004. The BDA is now forming the layout in the lands acquired including the land belonging to the petitioners. Petitioners in their statement of objections to the preliminary notification contended that they may be paid Rs. 150/- per Sq.Ft. as compensation and therefore they are now not entitled to the question of acquisition. They have not violated any of the conditions imposed by this Court in W.P. No 44949/2003 and connected matters. Since respondent Nos. 4 to 6 have voluntarily given up certain land belonging to them for formation of a road in the layout the BDA has re-conveyed certain lands as compensation. On these grounds the respondents opposed the claim of petitioners.

7. Heard arguments on both the side and perused the entire writ papers.

8. Respondent No. 3 – Land Acquisition Officer filed a statement showing the details of land acquisition and the same is as under:

9. A perusal of the above statement specifies that in the preliminary notification it was proposed to acquire 1532 acres 17 guntas. In the final notification large extent of land measuring 782 acres 17 guntas came to be left out. Further the award was passed to an extent of 447.25 acres. After taking possession of the land under Section 16(2) of the Land Acquisition Act certain lands came to be denotified, in respect of certain lands proposals are sent to Government for denotification, award was withdrawn in respect of certain lands, certain lands are left out on account of parallel acquisition proceedings, certain lands are left out on account of Court cases and certain lands are denotified during the pendency of writ proceedings. In the circumstances this Court by order dated 17.06.2011 directed respondent Nos. 2 and 3 to produce a plan specifying the entire extent of land notified in the preliminary notification, the land left out in the final notification, the lands left out under Section 16(2) notification, lands denotified before filing of the writ petitions and also during the pendency of the writ petitions in different colours. Accordingly the respondent Nos. 2 and 3 filed a plan showing these details. A perusal of the plan produced by respondent Nos. 2 and 3 manifestly establishes the fact that the lands left out and denotified from the acquisition proceedings are not situated in one compact block nor on one side of the proposed lay out. On the other hand it is seen from the plan that lands left out, denotified and acquired are located in different bits and they are intermingled. From this plan it is clear that the respondent Nos. 2 and 3 have arbitrarily left out the lands from acquisition proceedings and acquired certain bits of land here and there. Therefore practically it is not possible to form a layout of residential sites as initially conceived by the respondent Nos. 2 and 3. No material is placed on record to show that it is possible to form a residential layout in the bits of lands acquired by them which are situated in different places and when they are not linked to each other. When the very purpose of forming a layout of residential sites is not possible, then the impugned notifications are liable to be quashed on the ground that it is not practically possible to implement the project.

10. The manner in which the respondents notified the lands and denotified the lands specified that the respondent have adopted the policy of pick and choose in acquiring certain lands and leaving out certain lands from the acquisition proceedings. In identical circumstances the Supreme Court in the case of Radhy Shyam (Dead) through LRS and the others versus State of Uttar Pradesh and others (2011) 5 SCC 553 held as under:

“86.) We also find merit in the appellants’ plea that the acquisition of their land is vitiated due to violation of the doctrine of equality enshrined in Article 14 of the Constitution. A reading of the survey report shows that the committee constituted by the State Government had recommended release of land measuring 18.9725 ha. Many parcels of land were released from acquisition because the landowners had already raised construction and were using the same as dwelling units. A Large chunk of land measuring 4.3840 ha was not acquired apparently because the same belonged to an ex-member of the Legislative Assembly. The appellants had also raised constructions on their land and were using the same for residential and agricultural purposes. Why their land was not left out from acquisition has not been explained in the counter-affidavit filed by the respondents. The High Court should have treated this as sufficient for recording a finding that the respondents had adopted the policy of pick and choose in acquiring some parcel of land and this amounted to violation of Article 14 of the Constitution. Indeed it has not been pleaded by the respondents that the appellants cannot invoke the doctrine of equality because the other parcels of land were illegally left out from acquisition.”

11. It is seen from the record that out of total extent of land notified in the preliminary notification respondent Nos. 2 and 3 had actually taken possession of only 339 acres 34 guntas and the remaining land is left out from acquisition proceedings. According to the petitioners this works out to be , actual possession taken Was only 22.17% and the remaining 77.83% is left out from the acquisition proceedings. The respondent Nos. 2 and 3 in their statement of objections as per Annexure R-2 stated the reasons for deletion as “conversion, acquired for B.W.S.S.B. pipeline, built up area, nursery and garden, private layout, green belt area” etc. A perusal of Annexure R-2 specifies that no reasons are mentioned for deletion of 252.16 acres. The respondent Nos. 2 and 3 have not produced any documents in support of the reasons assigned by them for deletion of certain lands from the acquisition proceedings. From this material on record it is clear that arbitrarily and for extraneous considerations the respondent Nos. 2 and 3 have deleted the lands from the acquisition proceedings. The manner in which the acquisition proceedings went on is nothing short of gross misuse and abuse of statutory powers vested in respondent Nos. 2 and 3.

12.  It is not in dispute that respondent Nos. 2 and 3 initiated acquisition proceedings for formation of extension of Banashankari VI Stage layout and also for formation of the approach roads to connect the layout of Kanakapura – Bangalore main road. In the preliminary notification the land belonging to respondent Nos. 4 to 6 in Survey No. 226 of B.M. Kaval village measuring 10.12 acres and 5.12 guntas was proposed to be acquired in the Preliminary notification dated 07.11.2002. But in the final notification dated 09.09.2003 the land in survey No. 226 came to be left out. But, surprisingly, respondent Nos. 2 and 3 executed two registered sale deeds on 18.02.2009 and 04.04.2009 in favour of respondent Nos. 4 to 6 selling 1163.52 Sq. Mtrs, and 712.18 Sq. Mtrs in survey no 107 belonging to the petitioners as per Annexures T and T1.       The reason assigned by respondents 2 and 3 for executing the two sale deeds that respondent Nos 4 and 5 have voluntarily given a portion of the land in survey No. 226 for formation of road in the layout in question. On one hand the land belonging to respondent Nos. 4 to 6 proposed to be acquired in the preliminary notification is subsequently dropped in the final notification and on the other hand out of land acquired a portion of was sold to respondent Nos. 4 to 6 on the ground that they had voluntarily given up a portion of the land in survey No. 226 for formation of a road in the layout. Under the B.D.A. Act and Rules respondent Nos. 2 and 3 have no authority to sell the acquired land to respondent Nos. 4 to 6. On the face of it, the manner in which the acquisition proceedings are conducted is nothing short of abuse of power for extraneous considerations. There cannot be a better illustration than this in proof of colorable exercise of power.

13. The Supreme Court in Akhil Bharatiya Upbhokta Congress versus State of Madhya Pradesh and others (2011) 5 SCC 29 held as under:

“What needs to be emphasized is that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officer of the State. Every largesse action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be made known to the public by publication in the Official Gazette and other recognised modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. The distribution of largesse like allotment of land, grant of quota, permit licence, etc., by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and the element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State.”

In the instant case respondent Nos. 2 and 3 notified the lands belonging to respondent Nos. 4 to 6 in the preliminary notification and left out the same in the final notification. Subsequently respondent Nos. 2 and 3 executed two registered sale deeds selling the acquired land in favour of respondent Nos. 4 to 6 on the ground that they have voluntarily given up a portion of their land for the purpose of formation of road. This act on the part of respondent Nos. 2 and 3 is illegal, arbitrary and for extraneous considerations. As held by the Supreme Court in the decisions referred to supra the respondents have executed the sale deeds according to their sweet will and whims. Therefore, the two sale deeds executed in favour of respondents 4 to 6 are illegal.

14. The land covered under the two sale deeds executed in favour of respondent Nos. 4 to 6 are the lands belonging to the petitioners in survey No. 107 and the same is not disputed. From this it is clear that respondent Nos. 2 and 3 do not require the land of petitioners for the purpose of formation of layout. If the respondent Nos. 2 and 3 do not want the lands of petitioners then their request for levying betterment charges and to drop the acquisition proceedings shall have to be considered. From the material on record it is revealed that respondent Nos. 2 and 3 have levied betterment charges in respect of certain lands which are not required for the purpose of formation of layout. Then there is no reason as to why respondent Nos. 2 and 3 have not considered the request of the petitioners to drop the acquisition proceedings and to impose betterment charges. There is no acceptable explanation from respondent Nos. 2 and 3 for not considering the request of the petitioners. Therefore the acquisition proceedings are liable to be quashed.

15. On 29.05.2007 the notification under Section 16(2) of the Land Acquisition Act came to be issued evidencing the fact of taking possession to an extent of 395.37 Acres. It is not in dispute that subsequent to Section 16(2) notification, the respondent Government by exercising power under Section 48(1) of the Land Acquisition Act denotified certain lands. Annexure-P dated 29.6.2007, Annexure-V dated 10.6.2010, Annexure-W dated 1.10.2007, 30.08.2007, 01.10.2007, 30.08.2007 are some of the notifications issued by the first respondent-Government denotifying the lands at an extent of 29.3 Acres. Respondents 2 and 3 in their statement of objections stated that they have objected for denotification of the lands by the Government. Even during the pendency of this writ proceedings it is contended that certain extent of lands are denotified. From this admitted material on record, it is clear that the denotifications are issued by the Government without authority of law and in violation of statutory requirement. Further these denotifications are arbitrary in nature and for an extraneous considerations. Therefore, the entire acquisition proceedings are illegal and bad in law.

16. Learned counsel for the respondents contend that on earlier occasion this court in W.P. No. 44949/2003 and connected matters disposed on 6.6.2006 upheld the validity of acquisition proceedings. After lapse of several years, the petitioners have approached this court. On the ground of delay and laches the writ petitions are liable to be dismissed. In support of this contention reliance is placed on some decisions. I decline to accept this contention of learned counsel for the respondents. The Supreme Court in State of Punjab versus Gurudayalsingh (1980)2 SCC 471 held as under:

“Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power - - sometimes called colourable exercise or fraud on power and often time overlaps motives, passions and satisfactions --- is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of power is fulfillment of legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian or power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion.”

In Greater Noida Industrial Development Authority versus Devendra Kumar and others Manu/SC/0806/2011 it is held as under:

“We are not unmindful of the plight of large number of persons, who have made investment by booking flats etc., but, at the same time, it is impossible to ignore that the landowners and their transferees have been deprived of their property and the only source of livelihood in a most arbitrary and malafide manner without following the procedure established by law. It will be grave in justice to the people belonging to the latter category if the acquisition impugned before the High Court is sustained only with a view to save the investment made by those who are aspiring to acquire some property from the builders. However, it is made clear that those who have paid money to the builders for booking flats etc., shall be entitled to get back the amount along with interest at an appropriate rate and if the builders refuse to repay the amount, then they shall be free to avail appropriate legal remedy.”

In Vyalikaval House Building Co-operative Society versus V. Chandrappa and others (2007) 9 SCC 304, it is held as under:

“Land Acquisition Act, 1894 – Ss. 4 and 6 – Mala fides and fraud – Whole acquisition proceedings earlier found by High Court and Supreme Court to be vitiated by mala fides and fraud and the appellant society, for which the acquisition was made, was found to be not a bona fide housing society – Writ petition filed before High Court by respondent landowners after 14 years challenging the acquisition of their lands for appellant Society on the same reasoning – Held, when the acquisition found to be totally mala fide and not for public purpose, ground of delay in filing the writ petition or the petitioner having acquiesced in the proceedings by participating in inquiry under S.5-A has no substance – Further, even if respondents accepted any amount offered by appellant in an effort to settle out the acquisition, when the entire acquisition emanated from the tainted notification, any settlement on the basis thereof cannot be validated – When the basic notification under which the present land is a sought to be acquired stood vitiated then whatever money that appellant had paid, was at its own risk and once the notification goes, no benefit could be derived by appellant – Constitution of India – Art. 226 – Delay and laches – Malafides or fraud – Delay condonable.”

17.  Whenever the State and its agencies initiated action for acquiring lands, the land owners and the general public will be under the impression that the same is for a genuine public purpose, rules, regulations and procedure is followed. At a later stage, if it comes to light that rules, regulations and procedure is not followed, no uniform policy is adopted, pick and choose policy is adopted and for extraneous considerations some lands are deleted from acquisition, then the question of delay and laches is not a ground to dismiss the writ petitions. The cause of action will arise from the date of knowledge of fraud. In the instant case, the petitioners came to know about the deletion of certain lands, sale of certain lands and levy of betterment charges in respect of certain lands through information Act. Immediately the writ petitions are filed. Therefore the delay and laches is not a ground to non suit the petitioners.

18.  In the preliminary notification, it was proposed to acquire 1532.17 acres. In the final notification it was restricted to 750 acres. From these notifications it is clear that more than 50% of the lands are left out from acquisition. If the reasons assigned by the respondents for deletion of certain lands are true, then they issued preliminary notification without inspecting the spot, conducting the survey of the area, without studying the ground reality, the authorities by sitting in a room, marked the extent of land on a map. This casual approach by the custodians of the power is a fraud on the power.

19.  In the final notification, 750 acres was notified. But the award came to be passed only to the extent of 457.25 acres. Again the reasons given by the respondents for not passing the award in respect of certain lands are not satisfactory. Even according to the respondents, no reasons are assigned in respect of certain lands for not passing the award. Further after taking possession of the lands, certain lands are denotified. From these admitted facts, it is manifest that no uniform policy is adopted. The authorities adopted to pick and choose method for deletion of certain lands for extraneous considerations.

20.  The BDA Act is a special law for acquisition of land for planned development of Bangalore City. Any scheme formulated under the Act shall specify the immediate need, extent of lands required for proposed sites and other civic amenities like roads, parks, play ground, community purpose, drains etc. The material on record disclose that nearly 78% of the land proposed in the scheme are left from acquisition and only 22% of the land is acquired. Even out of this 22% land acquired, there are certain proposal pending the Government for denotification. It is not shown by the respondents as to how they will implement the project. No material is placed on record to show that the layout plan is approved by the Government. Several laws related to Greenbelt area. Comprehensive Development Plan, Bangalore- Mysore Infrastructure Corridor Area, Minor Forest Area etc are violated. There may be several other illegalities and acts of abuse of power which are not brought on record. The key attributes of good governance liked transparency, responsibility and accountability are totally absent and writ large in the instant case. In the circumstances, I am of the considered opinion that the matter requires a thorough enquiry.

21.  Karnataka Lokayukta Act contemplates the initiation of action against the person guilty of corruption, favouritism nepotism or lack of integrity in his capacity as a public servant. The failure on the part of public servant to act in accordance with the norms of integrity and conduct, which ought to be followed, amounts to lack of integrity. Prima-facie, I am of the opinion the matter requires investigation by Lokayukta.

For the reasons stated above, the following:

ORDER

i) Writ petitions are hereby allowed.

ii) The impugned preliminary notification dated 7.11.2002, the final notification dated 9.9.2003 and the notification issued under Section 16(2) of Land Acquisition Act in so far as it relates to 4 acres in Sy.No. 107 of B.M. Kaval village belonging to the petitioners is hereby quashed.

iii) Consequently, the two sale deeds dated 14.02.2009 and 04.04.2009 vide Annexures – T and T1, are declared as invalid in law.

iv) I hereby direct the Registrar of Lokayukta to treat these writ petitions as complaint under Section 9 of the Karnataka Lokayukta Act and to proceed in accordance with the Act. The Petitioners are hereby directed to file true copies of the entire writ papers including the affidavits with the Registrar of Karnataka Lokayukta within four weeks from today.

v) Ordered accordingly.