K.N. Keshavanarayana, J.@mdashThese appeals are directed against the common order dated 8/8/2007 passed by the learned Single Judge of this Court in W.P. Nos. 3901/2002 and 12053/2003 rejecting those petitions filed by the appellants herein.
2. The appellant in W.A. No. 1794/2007 is the petitioner in W.P. No. 12053/03 and the appellants in W.A. No. 1651/2007 are the petitioners in W.P. No. 3901/02.
3. In W.P. No. 12053/03, the petitioner sought for a writ declaring that the action of Bangalore Development Authority (for short BDA) in sanctioning the residential layout plan dated 8/3/2001 in favour of The Aircraft Employees House Building Co-operative Society Limited, (for short Society) in so far as it relates to the schedule land is illegal, null and void, and for a direction restraining the BDA from demolishing any structures standing there on, or from dispossessing the petitioner from, the schedule land.
4. In W.P. No. 3901/02 the petitioners sought for quashing of the very same layout plan dated 8/3/2001 granted by the BDA in favour of the society in respect of the same land and for a direction to BDA not to demolish any structures thereon.
5. The subject matter in both the writ petitions is the converted land measuring approximately 2 acres 20 guntas in Sy. No. 81/2-A of Singasandra village, consisting of three industrial sheds, building, watchmen shed and vacant land situated on Bangalore - Hosur main road, Singasandra village, Bangalore South Taluk, Bangalore.
6. The petitioner in W.P. No. 12053/2003 is the wife of one late P.R. Kiran. The second petitioner in W.P. No. 3901/02 is the mother and petitioners 3 to 5 are the brothers of said P.R. Kiran. There are disputes inter se between the petitioners in both these petitions with regard to the subject matter of the Writ Petitions. According to the petitioner in W.P. No. 12053/03, the entire extent of 2 acres 14 guntas in Survey No. 81/2-A was purchased by Mr. P.R. Kiran under different sale deeds and thus he was the absolute owner of the property till his death and upon his intestate death, his wife and the legal representatives have succeeded to the said estate. However, according to the petitioners in W.P. No. 3901/02, the parents of late P.R. Kiran acquired this property in his name and subsequently it became the property of the partnership firm viz., M/s. Kiran Ellen Enterprise of which the petitioners 2 to 5 in W.P. No. 3901/02 and late P.R. Kiran were partners and thus according to them, the property belonged to the partnership firm. For disposal of these appeals it is? not necessary to refer to the inter se dispute between the petitioners. However, it is suffice to note that the property stood in the name of P.R. Kiran.
7. It is the common contention of the petitioners in both these Writ Petitions that the entire extent of the land was converted into non-agricultural purpose that is for the industrial purpose and thereafter industrial sheds were constructed therein. It was the further contention that a portion of land was also taken over for widening National Highway No. 7. According to the petitioners during the year 1994, one Venkatesh claiming to be the Secretary of the respondent - Society tried to interfere with the peaceful possession and enjoyment of the schedule property by them and tried to remove the fencing erected around the land on the ground that the Government has granted the land to the Society. Thereafter, the first petitioner in W.P.3901/02 filed the suit in O.S. No. 5505/94 against the said Venkatesh and the BDA on the file of the City Civil Court, Bangalore for the relief of permanent injunction. During the said proceedings, it was revealed that the State Government has issued preliminary and final notifications for acquisition of large extent of land in Kundlu and Singasandra Villages including the land bearing Survey No. 81/2A. Immediately thereafter, W.P. No. 20322/95 came to be filed seeking quashing the acquisition proceedings. During the pendency of the said petition, the society approached the Writ Petitioners to amicably settle the matter and accordingly a settlement was arrived at between the parties which was reduced into writing in the form of agreement dated 14.11.1990, whereunder the Society gave up its claim over the schedule property viz., land measuring 2 acres 20 guntas including 3 industrial sheds and the petitioners gave up their claim over the portion of the land for the purpose of forming the road which should be used by both the parties. The said agreement was also accompanied by a sketch showing the portions to be used for forming the road and the portion to be retained by the Writ Petitioners. It was thereafter in the light of the agreement entered into between the parties, a joint memo dated 20.12.1996 duly signed by all the parties and their Counsel, was filed before the Court reporting that the matter has been settled out of Court and a resolution has been passed to that effect by the society on 5/12/1995 and sought for dismissal of the said writ petition as withdrawn. In the light of the joint memo, the writ petition was dismissed as withdrawn by order dated 17/1/1997. Thus the petitioners continued to remain in possession and enjoyment of the schedule property including the industrial sheds. As per the CDP dated 5/1/1995, Sy. No. 81/2A is reserved for industrial purposes and the industrial sheds are in existence over the schedule property since 1984 and at no point of time the petitioners were dispossessed from the land. Of late, the petitioners came to know that the society by playing fraud on the petitioners and by suppressing the material facts regarding the society giving up its claim in respect of the schedule property in favour of the petitioners and the petitioners continuing to remain in possession of the property, and the fact that the schedule property Is reserved for industrial purpose in the CDP, got a layout plan approved by the BDA by showing the schedule property as civic amenity site. The approval accorded by the BDA showing the schedule property as a civic amenity site is against and is in contravention of the revised CDP dated 5/1/1995. As the schedule property is reserved for industrial purposes in the CDP, the BDA could not have approved the layout plan submitted by the society showing the schedule property as a civic amenity site. Taking advantage of the approved layout plan, the office bearers and officials of society in collusion with the officials of the BDA are attempting to demolish the existing structures on the schedule property and are attempting to form roads though they have no right or authority to do so. Therefore, the petitioners have no alternative but to seek relief at the hands of the court.
8. Respondent No. 1 Society filed its statement of objections denying the case of the petitioners in both the petitions. The society contended that the land in question along with the surrounding land, in all, measuring about 300 acres came to be acquired pursuant to the preliminary notification dated 5.9.1988 issued u/s 4(1) and the final notification dated 28.9.1989 issued u/s 6(1) of the Land Acquisition Act and in both these notifications the name of Khatedars as well as Anubavadars in respect of the lands in question were notified. However, none of them filed objections to the notification. Thereafter award came to be passed on 4.5.1990, which came to be approved by the Government on 25.11.1990. Thereafter the possession of the acquired lands were taken on 2.4.1992 and in this regard a notification u/s 16(2) of the Act came to be issued on 8.4.1992 which was published in the Karnataka Gazette, on 16.4.1992. Thereafter the possession of the land was handed over to the society on 9.10.1992. The society further contended that after the possession of the land was handed over, the lay out was formed by obtaining necessary plan from the BDA and sites were allotted to the members of the society. It was further contended that after about six years of issuing final notification and long after taking over the possession of land, late P.R. Kiran filed Writ Petition in W.P. 20322/1995 challenging the acquisition proceedings in respect of the lands in question. The said Writ Petition was contested by the society by filing its detailed objections. During the pendency of the said Writ Petition series of Writ Petition filed by other land owners in respect of adjoining lands came to be dismissed on the grounds of delay and latches. Said P.R. Kiran after realising that his Writ Petition would also be dismissed on the ground of delay and latches, appears to have negotiated with the Ex-Secretary of the society for a settlement and appears to have entered into an illegal agreement which is not permissible under law. The society further contended that said P.R. Kiran and Ex-Secretary of the society colluding with each other have played fraud on the society for extraneous reasons and for irrelevant consideration. Therefore, the said compromise/settlement is not binding on the society and also on the State Government. On the basis of the alleged compromise the said P.R. Kiran filed a memo for withdrawal of the said petition and now petitioners are attempting to enforce the said agreement in this Writ Petition. It was further contended by the society that enforcement of alleged agreement entered into between the Secretary of the society and the predecessor in title of the petitioners cannot be the subject matter of a Writ Petition. As the acquisition of the lands belonging to the predecessor in title of the petitioners is by the State Government, it is not open to the society to give up the lands which are subject matter of the notifications issued u/s 4(1) and 6(1) of the L.A. Act. The society further contended that the entire case put forth by the petitioner is on the basis of the illegal agreement entered into between the predecessor in title of the petitioners and the Ex-Secretary of the Society and if alleged agreement is valid and legal one it is open for the petitioners to approach the Civil Court for establishing their right. It was further contended that the Ex-Secretary had no power to enter into any such agreement and the same is not binding on the society. It was further contended that the agreement alleged to have been entered between the owners of the land and the society for whose benefit lands were acquired by the State, cannot affect the validity or otherwise of the notifications issued for acquisition of the lands for the benefit of the members of the society. As such, the petitioners have no right to seek any of the reliefs sought in the Writ Petitions. The Society denied the contention of the petitioners that the lay out plan sanctioned by the BDA is against the provisions of the Town and Country Planning Act and the CDP. The society also denied the case of the petitioners that the possession of the land belonging to the petitioners has not been taken over. The other respondents did not file their statement of objections.
9. The learned Single Judge after hearing learned Counsel appearing on both sides dismissed the Writ Petitions by the impugned order holding that unless land is denotified, the society does not get any right to re-convey the lands in favour of the petitioners and no right has accrued to the petitioners pursuant to the so called agreement between the Secretary of the Society and predecessor in title of the petitioners, as such, the petitioners are not entitled for any reliefs. The learned Single Judge during the course of the impugned order observed that no doubt, the basis for withdrawal of the earlier Writ Petition by P.R. Kiran was a joint memo filed by the society and the petitioner therein, but however, what is of significance is that the land is sought to be acquired by the Government for the benefit of the Housing Society and therefore, the Society will not get any right in the acquired lands. It was further observed by the learned Single Judge that the Government is the acquiring body and the society is the beneficiary, apparently, the possession of the land cannot be parted by the society except for the purpose for which the land is acquired viz., formation of lay out and distribution of sites to its members and it does not authorise the society to virtually denotify the land and hand over the possession to the land owners and whenever a land is acquired for the purpose of a beneficiary, the possession or title cannot be divested unless a notification is issued u/s 48(1) of the Act and even assuming that the society is in possession of the land in question, the same having been handed over pursuant to the mahazar, unless the land is denotified u/s 48(1) of the Act, the Society does not get any right to part with the same. The learned Single Judge further observed that the joint memo filed in the Writ Petition is wholly misconceived and pursuant to the said settlement no such right accrues in favour of the petitioners so as to invoke Doctrine of estoppel as the said principle can be invoked only when a person who is promising has certain right in the property. Being aggrieved by the dismissal of the Writ Petition, the petitioners have presented these appeals.
10. We have heard Sri. G.S. Vishweshwara, learned Senior Counsel appearing for the appellants and Professor Sri. Ravivarma Kumar, learned Senior Counsel appearing for the respondent - Society.
11. We have perused the bulky records produced both by the BDA and the Government pursuant to our directions.
12. Sri. G.S. Vishweshwara, learned Senior Counsel appearing for the appellant contended that the learned Single Judge is not justified in observing that no right has accrued in favour of the petitioners pursuant to the settlement entered into between the society and P.R. Kiran which was the basis for withdrawal of the earlier Writ Petition challenging the validity of the acquisition; that the respondent - Society is estopped from contending that the agreement entered into between its Secretary and P.R. Kiran does not bind the society; that the material on record clearly indicated that the land in question is converted into non-agricultural purposes viz., for industrial purposes long poor to the issuance of acquisition notification and industrial sheds had been constructed thereon which were let out to different tenants and there is absolutely no evidence to indicate that actual possession of the land was taken over by the State Government and handed over to the society. Thus according to the learned Senior Counsel the possession of the land remained with the owner P.R. Kiran till his death and subsequently with his successors. The learned Senior Counsel further contended that unless the actual possession of the land is taken over, the area covered by the schedule property could not have been included in the lay out plan, therefore, the lay out plan said to have been approved by the BDA showing the schedule property as civic amenity area or as residential sites is illegal and therefore, the learned Single Judge ought to have quashed the layout plan in so far as it relates to the schedule property.
13. On the other hand, Professor Ravivarma Kumar, learned Senior Counsel appearing for the Society, contended that the learned Single Judge has rightly dismissed the Writ Petition as the alleged settlement entered into between the Ex-Secretary of the Society and erstwhile land owner is not binding on the society and society had no right to enter into such agreement, therefore the petitioners cannot derive any right pursuant to the said agreement/settlement. He further contended that assuming for the purpose of arguments that petitioners have derived some right pursuant to the said agreement, the same cannot be enforced by filing a Writ Petition and it could only be subject matter of a civil suit, therefore there are no merits in this appeal. He further contended that the notification issued u/s 16(2) of the Act is the proof of taking possession of the land in question, therefore it is not open to the petitioners to contend that they are still in possession of the land in question. He further contended that as the land in question has been acquired for the benefit of the society and the possession of the same has been taken over by the Government and handed over to the Society there is no illegality committed by the BDA in sanctioning the lay out plan which includes the land in question, as such, the learned Single Judge has rightly dismissed the Writ Petition, therefore, there are no grounds to interfere with the impugned order passed by the learned Single Judge.
14. There is no serious dispute that the land stood in the name of Mr. P.R. Kiran as on the date of the issue of preliminary notification u/s 4(1) of the Act. There is also no dispute that the said P.R. Kiran filed W.P. No. 20322/95 challenging the notifications issued u/s 4(1) and 6(1) of the Act and the said Writ Petition came to be later dismissed as withdrawn on the basis of a joint memo filed to the effect that the petitioner therein and the society have settled the matter out of court and a resolution has been passed to that effect on 5.12.1996 by the society. However what were the terms of settlement entered into between the parties were not placed on record at that point of time. There also appears to be no serious dispute that much prior to the issuance of notification u/s 4(3), the land in question had been changed into the non-agricultural purpose i.e., for industrial purpose. Perusal of the original records produced by the State Government and the BDA indicates that the industrial sheds existed on the land in question. The principal contention of the petitioners Is that the possession of the land remained with them as the industrial sheds are occupied by tenants from whom they are collecting rents and therefore the lay out plan approved by the BDA which includes the area covered by the land in question is bad in law. It is in the light of this contention we directed the State Government and the BDA to produce the original records pertaining to the land acquisition to find out as to whether the actual possession of the land on which the industrial sheds were existing had been taken over by the Government and if so how and in what manner the possession was taken. Pursuant to the said direction, the records were produced. No doubt, the notification u/s 16(2) of the Land Acquisition (Karnataka Amendment) Act, 1961 dated 8.4.1992 has been issued to the effect that the possession of the acquired lands including the land in question has been taken over by the Government and such notification shall be evidence of fact of taking possession.
14A. In the case of
We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act, 1894, it must take actual possession of the land since all interest in the land are sought to be acquired by it. There can be no question of taking ''symbolical'' possession in the sense understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and last rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down as absolute and violable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case.
(Emphasis supplied)
14B. In the case of
x x x x The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. x x x x.
14D. In the case of
x x x x Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm. x x x x.
14E. In the case of
9. It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchanama by the LAO in the presence of witnesses winged by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land.
14F. In the case of
14G. In the case of P.K. Kalburqi v. State of Karnataka and Ors. reported in (2005) 12 SCC 489 considering the effect of notification issued u/s 16(2) of the Land Acquisition Act, 1894 as amended by the Mysore Act 17 of 1961, the Apex Court has held that the said notification shall be evidence of fact that possession was taken though not conclusive. In other words, from this it is clear that the notification issued u/s 16(2) of the Act as amended by the Karnataka Amendment Act is not a conclusive evidence of taking possession. If the records placed before the courts indicate that the possession of the acquired land has not been taken then the evidentiary value of notification issued u/s 16(2) is lost.
15. In the light of the principles laid down in the aforesaid decisions, we perused the bulky records. However, the records do not indicate that possession of the land in question has been taken by any of the revenue authorities by drawing any mahazar in the presence of witnesses. The file do not contain any panchanama or mahazar said to have been drawn for having taken possession of the land In question though the file contains copies of certain mahazars and sketches said to have been drawn in respect of other lands. On the other hand, copy of the letter dated 12.7.2002 from the office of the Special Land Acquisition Officer to the Principal Secretary, Revenue Department would indicate the existence of industrial sheds in the land in question with on going industry running therein with 200 KW power connection and also the possession still remaining with the owners of the land. The said letter reads as under:
16. From the contents of the aforesaid letter it is clear that the Land Acquisition Officer has himself admitted that though the possession of the land is stated to have been taken over and handed over to the society, the possession still remains with the owners. Having regard to the fact that industrial sheds and other structures are in existence in the land in question where industries are run, obviously physical possession of land has not been taken. The perusal of the records produced by the BDA indicates that by resolution No. 454/92 dated 31.10.1992, a lay out plan submitted by the society covering an area of 324 acres 30 guntas was approved subject to several conditions. One of the conditions imposed therein was that the society should produce the possession certificate from the revenue department before issue of work order. The further noting made in the file submitted by BDA indicates that for a fairly long time, the society did not produce the possession certificate in respect of entire extent and therefore, the work order was not issued. In the mean while the society submitted revised lay out plan to an extent of 205 acres 1 gunta, the possession of which was stated to have been handed over to it. According to the file of BDA, the Society represented to BDA that it would secure the possession of the remaining lands soon. The BDA file also indicates that subsequently, the society went on submitting the revised lay out plans covering different extents. As per the notings dated 21.9.2000 in the BDA file since the land in question bearing Sy. No. 81/2A has been reserved for industrial purposes in the CDP, unless change of land user is permitted, the lay out plan showing the said area for residential purpose cannot be approved. The BDA file does not indicate as to whether such change of land use has been permitted by the competent authority. Nevertheless the BDA now appears to have approved a lay out plan submitted by the society including the land in question. The file produced by the BDA contains copies of duly signed approved lay out plans. It is interesting to note that in one such duly signed lay out plan the area covered under the land in question is shown as civic amenities namely park, whereas in another similar copy, the area is shown as residential sites. It is not forthcoming as to which is the lay out plan approved by the BDA. Nevertheless, in the light of the letter of the Land Acquisition Officer which is extracted above, the possession of the land in question remains with the owners. There has been no record in the file to prove that the actual possession of the land in question has been taken over by the Government and in turn handed over to the society. As long as the possession of the land remained with the owners of the tend and possession of the land having not been taken in the manner known to law, the BDA could not have approved the lay out plan in respect of the land in question showing the land in question either as a park or as residential sites. In the light of the above fact that actual possession of the land in question has not been taken over by the State Government, there is no need for us to go into the question as to whether the petitioners have derived any right pursuant to the agreement entered into between the Secretary and the predecessor in title of the petitioners. Even otherwise as noticed earlier, it is not forthcoming as to what were the terms and conditions agreed to between the parties under the alleged agreement as the copy of the alleged agreement was not produced before withdrawing the earlier Writ Petition. No doubt, the petitioners have now produced a copy of the agreement said to have been entered into between the parties before withdrawing the earlier Writ Petition. However the respondent - society disputed the correctness of the same. Therefore, we do not propose to express any opinion in this behalf. However, having regard to the fact that the records produced by the Government does not indicate possession of the land in question having been taken over in accordance with law, the learned Single Judge, in our opinion, was not right in not considering the question whether without taking possession of the land BDA could approve a lay out plan in respect of the land in question. The learned Single Judge in our opinion, ought to have secured the records from the Government and BDA to satisfy himself as to whether or not the actual possession of the land had been taken over. As the learned Single Judge did not secure the records, in our opinion, the impugned order passed without looking into the records on crucial aspect of taking over possession, is not in accordance with law. Therefore, the impugned order of the learned Single Judge requires to be interfered with.17. In view of the fact that the possession of the land still remains with the owners of the land and since actual possession of the land has not been taken over by the State Government, the BDA is not justified in sanctioning the lay out plan which included the land in question. Therefore, the lay out plan approved by the BDA in so far as it relates to the land in question is bad in law therefore it is liable to be quashed. It is open to the authorities to take possession of the land in question in the manner known to law and it is only thereafter the BDA would be competent to approve the lay out plan in respect of the land in question. It is also open to the petitioners to pursue their remedy at the Government level pursuant to the letter dated 12.7.2002 extracted above.
18. In the light of the above discussion, the writ appeals are allowed. The order of the learned Single Judge dated 8.8.2007 passed in W.P. No. 3901/2002 c/w W.P. No. 12053/2003 dismissing the Writ Petitions are hereby set aside. The Writ petitions are allowed. Rule made absolute. The lay out plan approved by the BDA is quashed In so far as it relates to the land in question viz., Sy. No. 81/2-A of Singasandra village Bangalore South Taluk, Bangalore, measuring 2 acres 20 guntas.
