Smt Puttamma v. State Of Karnataka

petitioners and continued to be reflected in their names till today. The RTC and mutation register extracts for the year 1971-72 to 2012-13 are produced along with the petitions. It transpires that one Govindappa had initiated revenue proceedings challenging the entries made in favour of the petitioners before the Tahsildar, Bangalore South. That was dismissed by an order dated 29.02.2000 confirming Venkatagiriyappa as the owner of the property. Govindappa had filed an appeal before the Assistant Commissioner. That appeal was allowed setting aside the order of the Tahsildar, which in turn was challenged by way of a revision petition before the Special Deputy Commissioner, who had allowed the revision petition confirming the order passed by the Tahsildar. Being aggrieved by it, a writ petition came to be filed before this Court in W.P.44252/2001 and that petition was dismissed with liberty to the parties to approach a Civil Court, by an order dated 16.01.2006. The Respondent No.2, namely the BDA is then said to have issued a preliminary notification under

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Section 17 of the Bangalore Development Authority Act, 1976, (hereinafter referred to as 'the BDA Act', for brevity) dated 7.11.2002 seeking to acquire lands for the formation of Banashankari 6^thStage Residential Layout, including the land of the petitioners, totally measuring 1 acre. The land was sought to be acquired though it was not referred to by sub- number. The land of the petitioners was shown as being part of Sy.No.7 and the name of the petitioners were shown against Sy.No.7. The notification was challenged by the petitioners as being inaccurate and not referring to the petitioners' property. The said writ petition was heard along with other petitions challenging the very notification, all of which were disposed of by a common order directing the petitioners therein, including the present petitioners, to file appropriate petitions, which could be heard and disposed of by the competent authority. Accordingly, the petitioners have filed these petitions highlighting the fact that the land belonging to the petitioners had a sub-number, namely 7/15 and unless the same was

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reflected in the notification for acquisition, it could not be said that the acquisition was in order. The objections were ignored and the respondent had proceeded with the earlier notifications.

3. In the interregnum, it transpires that in respect of one item of land in Sy.No.7, namely Sy.No.7/22, the BDA had thought it fit to collect betterment charges and drop that particular land from the acquisition proceedings. Taking cue from that circumstance, the petitioners had also made an application seeking that their land also be dropped from acquisition by collecting betterment charges. That was ignored by the BDA. Therefore, the petitioners had approached this Court by way of a writ petition in W.P.No.26117-119/2014 questioning the acquisition proceedings on that ground. That petition was disposed of with a direction to the BDA to hold a survey and consider the case of the petitioners for a similar treatment as was meted out to the land owner in Sy.No.7/22. The BDA did not choose to do so. However, it claimed that the acquisition proceedings had been completed in all respects and

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when the petitioners were sought to be dispossessed, the present petitions have been filed.

It is highlighted that throughout, the acquisition proceedings have been taken in respect of Sy.No.7 totally measuring 102 acres 6 guntas. The said sub-number, Sy.No.7/15 of which the petitioners are concerned, is not reflected in any of the records. Incidentally, it is pointed out that initially, the total extent sought to be acquired for the said scheme was 1532 acres and in Manavartha Kaval village, it was 348 acres. However, the final notification was issued only in respect of 750 acres in total and in respect of Manavartha Kaval, it was 194 acres 6 guntas. Out of Sy.No.7, the total extent notified was 102 acres, but it was confined to 49 acres and 4 guntas. It is in this background that the petitions are filed.

4. Though it is contended that the scheme not having been implemented substantially five years from the date of the final notification and the scheme having lapsed, the more

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significant ground on which the petitions are filed is that since Sy.No.7 which totally measures 102 acres consists of various sub numbers, which the BDA itself has recognized even as seen from the mahazar produced in the circumstance that physical possession of the entire extent of land in Sy.No.7 has been taken, there is reference to several sub numbers. In which event, without reference to the individual sub numbers held by each land owners in Sy.No.7, the acquisition proceedings being held against the petitioners as if the land is specified as being Sy.No.7/15 though it is not reflected anywhere in the record, would vitiate the entire proceedings against the petitioners and therefore seeks that the proceedings be quashed. Further, it is also pointed out that possession of the land continues to remain with the petitioners and by virtue of the mahazar or the notification issued under Section 16(2) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the LA Act', for brevity), it cannot be said that physical possession of the land has been taken of the petitioners' land. And would

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thus contend that the acquisition itself would lapse in terms of Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the 2013 Act', for brevity).

5. Though the learned counsel for the BDA would seek to point out that the entire extent of land in Sy.No.7 having been notified and duly acquired by paying the compensation and taking physical possession of the same, the petitioners' bald contention that the land of the petitioners bears a sub number and in the absence of indication of the sub number, the acquisition being vitiated, is hardly a ground that can be raised in the third round of litigation. Such a ground was available to the petitioners in the first instance and has been raised on two earlier occasions. On both the occasions, the petitions have been disposed of with certain directions and if the same being claimed as a serious infirmity, was never present to the mind of the petitioners nor was it brought to the attention of this Court. Therefore, it cannot be construed as an infirmity going to the

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root of the matter. The fact remains that the land bearing Sy.No.7 has been duly notified and acquired. The land which the petitioners claim is part and parcel of Sy.No.7 except two items of land which are referred to in the mahazar and which have been excluded. Therefore, the presumption is, the entire extent that was notified out of Sy.No.7 including the petitioners' land, has been acquired and the acquisition proceedings have been completed. The layout has been formed and it is misnomer to contend that the scheme has not been substantially implemented insofar as the pocket of land is concerned. The said contention is not available to the petitioners and therefore, seeks to justify the acquisition proceedings. Further, in support of the contention that the acquisition proceedings have been completed in all respects, reliance is placed on a mahazar and the award notice as well as the notification issued under Section 16(2) of the LA Act.

6. In the above circumstances, it is not in dispute that the land claimed by the petitioners was assigned a survey number

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even as on the date of grant made in favour of the petitioners' father and this has been reflected in the revenue records as well. Therefore, any acquisition in respect of the land most identified, by its survey number, is not forthcoming. When the BDA has in fact referred to sub numbers in Sy.No.7, it is inexplicable that it chose to lump together several items of lands which formed part of Sy.No.7 as having been acquired, merely by indicating the names of the land owners therein, including the petitioners. This exercise cannot be countenanced. The fact that the petitioners were before this Court on two earlier occasions also, would not render the said ground as being without substance. Such a ground was not specifically raised on the earlier occasions and it was in other circumstances that the petitioners were before this Court.

In any event, physical possession having been taken, would have yet another question that would determine that the acquisition proceedings have lapsed. Though the scheme not having been implemented in respect of a pocket of land out of a

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larger extent and those notified for acquisition, could be debatable, but however, if the land of the petitioners which has been notified if physical possession is shown not to have been taken, the rigour of Section 24 of the 2013 Act would certainly apply.

7. In the present case on hand, reliance is placed on Annexure-"R2", the mahazar which is a primary document of having taken physical possession of the land. As seen from the document, it is a standard format document in which blanks are filled up. The necessary details of the persons present at the time of taking over of physical possession is a significant entry which is found to be missing from the said document. There is no indication of any person having been present at all except the same vague signatures which appear to be in a similar language in the said document. It is repeatedly held by this Court in several petitions that a document evidencing the taking over of physical possession or depriving the petitioner of a valuable property, would require to be of a nature which can be

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tested before a court of law. In other words, if the BDA is called upon to establish a document at Annexure-R2, by producing the persons who were said to be present at the time of taking over physical possession, in the absence of particulars of those persons whose signatures are allegedly found on the said document, when their parentage or addresses or their age being unavailable, it would be well-nigh impossible for the BDA to substantiate the same. Therefore, this document can safely be negated by this Court, as a nebulous document which does not establish taking over of physical possession to the satisfaction of this Court.

Though normally in other cases a notification under Section 16(2) of the LA Act would be produced in this case, in this case, not even that notification is made available. In any event, the mere deposit of the award amount again, would not absolve the BDA of establishing the fact that physical possession has been taken. Consequently, the petitions are

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allowed. The acquisition proceedings in respect of the petitioners' land are quashed.

Sd/-

JUDGE

KS

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