Smt. Muninarasamma W/O Late Galiga @ Gali Hanuma Vs. the State of Karnataka Urban Development Department by Its Secretary and the Commissioner Bangalore Development Authority - Court Judgment

Excerpt:
[a] bangalore development authority act, 1976 - sections 17(1) & 19--acquisition--formation of 'hrbr' layout--notification--challenge to--inordinate delay of 31 years in filing the writ petition--held, there is a long and inordinate delay of 31 years in approaching the high court. the petitioner has not assigned any reasons for the delay except stating that she has been filing representations to the respondents for allotment of the said land in her favour. it is also relevant to notice that the owner of the said property, namely, kurian thomas has participated in the acquisition proceedings. therefore, the writ petition is liable to be dismissed on the ground of delay and laches.;[b] constitution of india - article 226/227--writ petition--petitioner's prayer that the bda may be.....orders. abdul nazeer, j.1. in this case, the petitioner has called in question the validity of the final notification issued by the respondent no. l bearing no. hvd 49 mnj 78 dated 14.5.1980 in respect of lands bearing sy. no. 97/2 situated at challakere village, k.r. puram hobli, bangalore east, bangalore.2. the petitioner contends that he is the owner of the property in question having purchased the same under a deed of sale dated 8.3.1944. it is further contended that he had sold the said property in favour of one kurian thomas under a deed of sale dated 24.1.1980. it is further contended that kurian thomas has executed a general power of attorney as per annexure 'f' dated 28.1.1995 in respect of the said property in favour of the petitioner and that she has been in possession and.....

Judgment:
ORDER

S. Abdul Nazeer, J.

1. In this case, the petitioner has called in question the validity of the final notification issued by the respondent No. l bearing No. HVD 49 MNJ 78 dated 14.5.1980 in respect of lands bearing Sy. No. 97/2 situated at Challakere Village, K.R. Puram Hobli, Bangalore East, Bangalore.

2. The petitioner contends that he is the owner of the property in question having purchased the same under a deed of sale dated 8.3.1944. It is further contended that he had sold the said property in favour of one Kurian Thomas under a deed of sale dated 24.1.1980. It is further contended that Kurian Thomas has executed a General Power of Attorney as per Annexure 'F' dated 28.1.1995 in respect of the said property in favour of the petitioner and that she has been in possession and enjoyment of the said property from the date of the said Power of Attorney. It is further contended that since the respondents are trying to demolish the constructions made on the said lands, she has filed this writ petition for quashing the aforesaid final notification and for a declaration that the respondents do not have any power or authority for auctioning of the land in question.

3. The 2nd respondent has filed its statement of objections. It is contended that the 2nd respondent had issued a preliminary notification under Section 17(1) of the Bangalore Development Act, 1976 (for short 'BDA' Act) proposing to acquire lands for a public purpose, namely, for the formation of a layout called 'SCHEME BETWEEN BANASWADI AND HENNUR ROAD (for short 'HRBR' layout). It is further contended that the husband of the petitioner namely Galiga @ Galihanumaiah was the notified Khathedar of the said land. The 1st respondent had issued a final notification on 14.5.1980 and award was passed on 7.1.1983 and possession of the land was taken on 24.1.1986 and handed over to the Engineering Section of the BDA. It is also contended that in the acquisition proceedings, Kurian Thomas had filed an application seeking enhancement of the compensation on 5.10.1983. It is further contended that there is a long delay of 31 years in approaching the court for quashing of the impugned notification and that petitioner has not assigned any reasons for the delay.

4. I have heard the learned Counsel for the parties.

5. Learned Counsel for the petitioner would contend that though the property was sold by the petitioner to Kurian Thomas as per the sale deed at Annexure-E dated 24.1.1980, Kurian Thomas has executed a Power of Attorney in favour of the petitioner as per Annexure-F dated 28.1.1995 and that the petitioner continued to be in possession of the property in question. Since the petitioner is in possession of the property, the respondents are not justified in dispossessing the petitioner or taking action for auctioning of the property. In the alternative, it is argued that since the petitioner is in possession of the land in question, the second respondent may be directed to allot the said land in her favour.

6. On the other hand, the learned Counsel appearing for the 2nd respondent submits that the property had already been acquired on 24.10.1986, the sale deed executed by the petitioner and her family members after the issuance of the notification in question is without authority of law. It is further submitted that Kurian Thomas had sought enhancement of the compensation pursuant to the award notice issued by the respondents. On this ground alone, the writ petition is liable to be rejected. It is further argued that admittedly the petitioner has sold the property in favour of Kurian Thomas. Kurian Thomas has not challenged the acquisition proceedings. Petitioner has filed this writ petition in her independent capacity and not as a power of attorney holder of Kurian Thomas. On this ground also, petition is liable to be dismissed. It is further argued that there is a long and inordinate delay of 31 years in approaching this Court challenging the acquisition proceedings and that petition is liable to be dismissed on this ground as well. It is submitted that petitioner is not entitled for allotment of the lands in question as there is no provision in the BDA Act or the Rules made thereunder to allot the lands in favour of the petitioner. Learned Counsel for the 2nd respondent has made available the original acquisition records in respect of the aforesaid land for the perusal of this Court. He prays for dismissal of the writ petition.

7. I have carefully considered the arguments made at the bar and perused the materials placed on record.

8. Admittedly, the petitioner and her family members were the owners of the land in question. They had sold the said land in favour of Kurian Thomas under a sale deed dated 24.1.1980. Petitioner claims title to the property on the basis of the General Power of Attorney at Annexure-F. Perusal of AnnexureF shows that Kurian Thomas had authorised the petitioner to deal with the property in accordance with different clauses of the said power of attorney. Petitioner has not produced any material to substantiate her contention that she is the owner of the property. This writ petition is filed by the petitioner in her independent capacity and not as an agent of Kurian Thomas. On this ground alone, petition is liable to be rejected. Be that as it may.

9. It is evident from the acquisition records that the Kurian Thomas had filed an application on 5.10.1983 in reply to the award notice issued by the acquiring body dated 7.1.1983 seeking enhancement of compensation. He had not challenged the acquisition proceedings. It is settled that once the owner of the land seeks enhanced compensation, the writ petition challenging the acquisition proceedings should not be entertained as held by a Division Bench of this Court in V.T. Krishnamoorthy v. State of Karnataka reported in : ILR1991KAR1183 and the Apex Court in Reliance Petroleum Ltd. v. Zaver Chand Popatlal Sumaria and Ors. reported in : (1996)4SCC579 .

10. Apart from the above, there is a long and inordinate delay of 31 years in approaching this Court. The petitioner has not assigned any reasons for the delay except stating that she has been filing representations to the respondents for allotment of the said land in her favour. It is also relevant to notice that the owner of the said property, namely, Kurian Thomas has participated in the acquisition proceedings. Therefore, the writ petition is liable to be dismissed on the ground of delay.

In Kazi Singh and Ors. v. State of U.P. and Ors. reported in : [1984]3SCR417 , the Apex Court has held that the petition filed after a delay of nearly two and half years, questioning the Notification issued for acquisition of the lands is fatal. In the said decision, it has been held as follows:

4. At the out set we are of the view that the writ petition filed in July, 1982 questioning the notification issued in January, 1980 after a delay of nearly two and a half years is liable to be dismissed on the ground of laches only. It is no doubt true that the appellants have pleaded that they did not know anything about the notifications which had been published in the Gazette till they came to know of the notices issued under Section 9(3) of the Act but they have not pleaded that there was no publication in the locality of the public notice of the substance of the notification as required by Section 4(1) of the Act.

In Municipal Corporation of Greater Bombay and Industrial Development Investment Company reported in AIR 1997 SC 482, the Hon'ble Supreme Court has held that when all steps taken in the acquisition proceedings have become final, the Court should not quash the notification particularly when there is an inordinate delay in filing the writ petition. The relevant portion is as follows:

It is well settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award, which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division Bench of the High Court was not right in interfering with the discretion exercised by the learned single judge dismissing the writ petition on the ground of laches.

In State of Rajasthan and Ors. v. D.R. Laxmi and Ors. reported in : (1996)6SCC445 , the Hon'ble Supreme Court has held that though the High Court has discretionary powers to quash the notification, it should be exercised taking all relevant factors into pragmatic consideration. It is further held that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, Court should not quash the acquisition proceedings. The relevant portion is as under:

Recently another Bench of this Court in Municipal Corporation of Greater Bombay v. Industrial Development & Investment Co. (P) Ltd., Re-examined the entire case law and had held that once the land was vested in the State the Court was not justified in interfering with the notification published under appropriate provisions of the Act. Delay in challenging the notification was fatal and writ petition entails with dismissal on grounds of latches. It is thus, well settled law that when there is inordinate delay in filing the writ petition and when all steps taken into acquisition proceedings have become final, the Court should be loathe to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award, which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference.

11. The last submission of the learned Counsel for the petitioner that the BDA may be directed to allot the land in question to the petitioner as it is unutilised is also without any merit. He is not able to point out any statutory provision under which petitioner is entitled for allotment of the land. The land acquired by the State Government and made over to the BDA is for the purpose of executing a scheme. Such a land has to be allotted/re-conveyed by the BDA strictly in accordance with the provisions of the BDA Act and the Rules made thereunder. It is well settled that a public body invested with statutory powers has to take care not to exceed or abuse its powers. It must act within the limits of the authority committed to it. The Act has not conferred upon the BDA any inherent powers much less any discretionary powers to allot the land in question. The power conferred by Articles 226/227 being designated to effectuate the law, to enforce the rule of law and to ensure the several authorities and organs of the State act in accordance with law, it cannot be invoked for directing the authorities to act contrary to law. In B. Venkataswamy Reddiy v. State of Karnataka ILR 1969 Kar 75 and in BDCC Bank Employees Cooperative Society v. BDA 1989(1) KLJ 111, this Court was considering the validity of the bulk allotment of the lands to the Cooperative Societies prior to insertion of Section 38-B of the BDA Act. It has been held that the BDA has no power to make bulk allotment because the lands acquired by the State Government and made over to the BDA for a specific purpose of executing an approved scheme and as such, land has to be utilised by the BDA solely for the purpose of execution of the scheme in the manner envisaged by the scheme and not beyond. The land is held by the BDA for the State Government in trust. A part of such land cannot be handed over to a society for however noble a purpose since it would be contrary to the intendment of the scheme and the Act and virtually would amount to fraud or a breach of trust. The said decisions have been approved by a Division Bench of this Court in Telecom Employees Cooperative Housing Society Ltd. v. Scheduled Castes, Scheduled Tribes, Minority Communities & Backward Classes Improvement Centre : ILR1990KAR3320 .

12. It is well settled that once the land is acquired it vests in Government free from all encumbrance. Even if the land is unutilised, it cannot be reassigned to the petitioner as held by the Apex Court in Govt. of A.P. and Anr. v. Syed Akbar : AIR2005SC492 . In the said decision, it has been held as under:

13. From the position of law made clear in the aforementioned decisions, it follows that (1) under Section 16 of the Land Acquisition Act, the land acquired vests in the Government absolutely free from all encumbrances; (2) the land acquired for a public purpose could be utilized for any other public purpose; and (3) the acquired land which is vested in the Government free from all encumbrances cannot be re-assigned or re-conveyed to the original owner merely on the basis of an executive order.

13. There is no merit in this writ petition and it is accordingly dismissed. No costs.