A.S. Bopanna, J.@mdashThe Appellants in both these appeals were the Respondents in W.P. No. 3317/2004 (LA-BDA). The Appellant in WA No. 473/2005 is the beneficiary of the acquisition viz., the Bangalore Development Authority (''the BDA'' for short) having succeeded to the City Improvement Trust Board (''CTTB'' for short). The said Appellant was the second Respondent in the writ petition. The Appellants in WA No. 271/2005 are the persons who had purchased the sites in a public auction conducted by the BDA. The said sites were formed in the major portion of the land which is the subject matter of these appeals. The said Appellants had got themselves impleaded in the writ petition. Since the learned Single Judge has allowed the writ petition filed by the first Respondent herein, the BDA as well as the site purchasers are before this Court in these intra-Court appeals. As common contentions arise for consideration, they are taken up together for disposal.
2. The land in question measures 1 acre 15 guntas situate in Sy. No. 137, Thippasandra village, K.R. Puram Hobli. Bangalore South Taluk. The said land along with vast extent of other lands, in all measuring 428.01 acres was acquired by the predecessors of the BDA viz., the CITB for formation of a residential layout known as HAL II Stage layout. The preliminary notification is dated 28.11.1959 which was published in the gazette on 21.01.1960. The final notification dated 19.08.1964 was published in the gazette on 27.08.1964. The award is stated to have been passed on 13.05.1969 and a supplementary award is also stated to have been passed on 17.01.1977. According to Appellants, the possession of the land and structures were taken on 28.12.1976, but, the same is disputed by the contesting Respondent. It is to be noted that the first Respondent herein, who was the Petitioner in the writ petition is referred as the contesting Respondent. He has died during the pendency of this appeal and his legal representatives who are brought on record are collectively referred as contesting Respondent for the purpose of convenience and clarity. The contesting Respondent and his brother are stated to have conveyed the property in question in favour of Sri A. Nanjundachar, S/o Nirmalanand Annaiahachar in the year 1952 itself. The khatha of the property however stood in the name of Doddaiah i.e., the father of the contesting Respondent and as such the acquisition was notified in his name. It is in that context, the said Sri A. Nanjundachar filed an application on 02.11.1964 claiming compensation in respect of the acquired property at the rate of Rs. 15,000/- per acre. The contesting Respondent also filed application dated 13.12.1967 claiming compensation at the rate of Rs. 25,000/- per acre. In view of the rival claim made for disbursement of compensation in respect of the acquired property, the acquiring authority is stated to have deposited the compensation before the Civil Court on 28.02.1977 i.e. after passing of the supplementary award, so that the entitlement for compensation could be decided in terms of Sections 30 & 31(2) of the Land Acquisition Act (hereinafter referred to as the ''LA Act'' for short).
3. According to the Appellants, the BDA has formed sites in the land in question, except the portion where the temple building and RCC house building is situate. Though the contesting Respondent had earlier instituted several suits from the year 1969 onwards in an attempt to protect his alleged possession of the property, the acquisition in itself has been questioned for the first time in the instant writ petition filed on 19.01 2004. Thus, the petition no doubt is after a long lapse of 45 years from the date of the preliminary notification, but the earlier litigations cannot be ignored. The prayer made in the writ petition is to declare the acquisition in respect of the land in question as null and void and also to declare the same as having lapsed in terms of Section 27 of the Bangalore Development Authority Act (hereinafter referred to as ''the Act''). The learned Single Judge, while allowing the writ petition, has held the acquisition in respect of the land in question as lapsed and declared the demolition and formation of sites as illegal and arbitraiy and also directed the auction purchasers to claim refund of the amount with interest. Therefore, the BDA as well as the auction purchasers claim to be aggrieved, by the order passed by the learned Single Judge.
4. Heard Sriyuths Jayakumar S. Patil, K.G. Raghavan, S. Sreevatsa, N. Devadass, the respective learned Senior counsel for the parties and Sri B. Veerappa, learned Additional Government Advocate and perused the appeal papers as also the original records maintained by BDA relating to the acquisition, made available at the time of hearing.
5. In the light of the contentions urged, the first aspect for consideration, in the instant case, would be with regard to the validity or otherwise of the possession taken by the BDA insofar as the extent of the land involved herein. The learned Single Judge, while considering this aspect of the matter, has taken note of the gazette notification dated 16.06.1977 issued u/s 16(2) of the LA Act. It is the well established position of law that the said notification is also a valid piece of evidence in aid of establishing the taking of possession. However, keeping in view the fact that the said notification would be in the nature of declaration of the fact of having taken possession, the issue relating to the manner in which the authorities have established that physical possession of the land is taken, is an aspect to be noticed and considered. At the outset, it is to be stated that the observation of the learned Single Judge that the contesting Respondent was in settled possession and had perfected his title by adverse possession since 12 years had lapsed from the date of the final notification to the alleged date of taking possession is not sustainable on the face of it, inasmuch as the undisputed feet is that as noticed by the learned Single Judge, the first suit filed by the contesting Respondent was in O.S. No. 610/1969 which was followed by the subsequent suits in O.S. No. 314/1969, MA No. 81/1969. O.S. No. 1 139/1978 (new number O.S. No. 3430/1980). As such the same would indicate that though the final notification was issued on 19.08.1964, there was litigation between the parties and the dispute therein was with regard to the possession itself. Such disputed possession which was under litigation cannot be considered as settled possession.
6. Further, for the entire conclusion with regard to the manner of taking over possession by the acquiring authority, the learned Single Judge has placed reliance on the decision in the case of Balwant Narayan Bhagde v. M.D. Bhagwat AIR 1975 SC 767 and also the provision contained in Section 16 of the LA Act on the issue of the competent person to take possession of the acquired property. On the procedure to be followed and the manner of taking possession of the acquired property, the same need not be discussed in detail inasmuch as a Full Bench of this Court by the opinion rendered in the case of S.M. Kannaiah v State of Karnataka and Ors. W.P. No. 10109/2009 decided on 14.02.2011 has answered the question relating to the said aspect of the matter. In the said decision, the Full Bench after taking into consideration the earlier decisions on the subject matter, including the case of Balwant Narayan Bhagde has answered the reference as follows:
i) The power to be exercised for taking possession of the acquired property as contemplated u/s 16(1) of LA Act need not be taken by the Deputy Commissioner himself. Since the expression "Deputy Commissioner" as appearing in Section 16(1) includes the Assistant Commissioner in charge of a sub-division of a district or any Officer specially appointed by the appropriate Government as provided in Section 3(c) of the Act to perform the functions of a Deputy Commissioner under the Act, they can also exercise the power u/s 16(1) of the Act.
ii) The possession taken by the sub-ordinate Officers by complying with the procedures would be valid in law, if such possession is taken based on the authorisation issued by the Officers designated u/s 16(1) of the Act. Whether such sub-ordinate Officer has been authorised to perform that function by the designated Officer or not would arise for factual determination, if the same is specifically disputed in an individual case. In such cases, it would be incumbent on the acquiring authority to establish before the Court that the possession was obtained by such subordinate Officer with the concurrence of the Officer designated to perform the said function of taking possession u/s 16(1) of the LA Act. Therefore, the Deputy Commissioner/Assistant Commissioner in charge of a sub-division in a district or the Officer specially appointed by the appropriate Government, as the case may be, need not be personally present at the spot or location of the acquired land. It would be sufficient, if the said Officers authorise any other officer and if such officer who has been authorised takes possession and reports back to the Officers empowered u/s 16(1) of the Act and such Officer accepts the report of taking possession by acting upon the same. Such authorisation and reporting back need not be in any particular format or manner to put it in a straight jacket, but the records should disclose the same to the satisfaction of the Court.
7. Keeping in view the opinion expressed by the Full Bench, the manner in which the possession has been taken in the instant case is to be noticed in view of there being dispute with regard to the possession being taken. A perusal of the original records maintained by BDA would disclose that the Special Additional Land Acquisition Officer by a memo dated 21.12.1976 has directed the Revenue Inspector attached to that office to take possession of the land, together with the malkies thereon from the person to whom notices have been issued. The said memo further indicates that if the parties do not come forward to hand over possession of the land voluntarily or where there are no claimants, the possession is to be taken u/s 16 by a mahazar drawn up before the Panchayatdars and a report be submitted by 28.12.1976 after handing over possession to the concerned Engineering Section of the Board. The details of the land, including the number of award notices and the date and time of taking possession is also mentioned. The said memo is at page 5 of the records. The award notice u/s 12(2) is dated 21.12.1976. One such notice is addressed jointly to Sri D. Narayanappa and Sri D. Hanumanthappa i.e., the contesting Respondent and his brother. The other notice is addressed to Sri A. Nanjundachar. Both the notices indicate that the said persons have been called upon to handover the possession of the land at the spot to the Revenue Inspector. The same are available at pages 7 and 8 of the records and on the reverse side of the notice, the contesting Respondent and Sri A. Nanjundachar have affixed their signature on 27.12.1976 in acknowledgment of having received the notice. The mahazar/panchanama available at page 9 of the records indicates that possession of the property was taken and the same lists out 29 items of which possession is taken viz., the land with the malkies. Apart from the other items, what is relevant is the indication of the temple, a house with a stone slabbed roof and a zinc sheet veranda at Sl. Nos. 1 to 3 in the mahazar. The mahazar is signed by Sri A. Nanjundachar and five panehayatdars. The boundaries is said to have been shown by one Sri Maheshwarappa who has signed the said mahazar. The revenue Inspector has also recorded that, the possession of the land with malkies, structures, wells and temple have been taken from the owner of the land and handed over to the engineering department on 28.12.1976 and the same also records the possession being taken by the engineering section by the junior engineer. In this regard, a separate acknowledgment listing out the structures and malkies is also enclosed with the mahazar which is at page 10 of the records. The records also contains a report at page 11. The said report is submitted to the Special Land Acquisition Officer by the Revenue Inspector for having taken possession of the land in question. In addition to the cyclostyled report, a manuscript report in the handwriting of the Revenue Inspector needs to be noticed in detail and as such it would be beneficial to extract the same for easv reference.
Report
Possession of land in respect of Sy. No. 137 of Thippasandra village has been taken on 28.12.76 and the signature of the owner Sri A. Nanjundachar has been taken in the possession mahazar. But, on the spot one Sri Narayanappa, tenant of this survey number who has also been served with notices was present and he is in physical possession and living in the house constructed therein and he has not signed in the mahazar. Orally he has given possession of land for the formation road portion acquired and he says that he would come to the office within two days and sign the possession mahazar before the SALAO His son Sri Sudhakar has signed the mahazar of possession at the spot on 28.12.76. This is for your kind perusal.
Sd/-
R.I
28.12.76
8. The perusal of the above records would indicate that insofar as the procedure contemplated for taking possession, the same is duly complied in view of the position explained by the Full Bench of this Court and in that regard, there is no infirmity. Though the learned Counsel for the contesting Respondent contended that the said documents are in the printed form of CITB and as on the date of alleged possession, the BDA Act had already come into force and the BDA was in existence, in our view, that alone would not render the taking of possession invalid if the procedure followed is in accordance with law In this regard ii is to be noticed that the Full Bench, in feet has specifically stated that the authorisation and reporting back need not be in any particular format, but the records must disclose the same to the satisfaction of the Court. If this is kept in mind, the use of the format prepared during the existence of the CITB being used in an acquisition which was initiated by CITB and being continued thereafter for the purpose of taking possession that too during the period of transition is valid. The question of actual physical possession of the properties being taken would however be considered herebelow at a later stage after adverting to certain other issues which requires consideration earlier to that aspect since they become relevant for that purpose.
9. The fact that the contesting Respondent and his brother had executed a document in favour of Sri A. Nanjundachar in the year 1952 i.e., much prior to the initiation of the acquisition process cannot be in dispute inasmuch as the learned Single Judge has adverted to that aspect of the matter exhaustively. The learned Single Judge has however arrived at the conclusion that the same is not an absolute sale deed but a nominal one in the nature of mortgage deed. In fact the said finding rendered by the learned Single Judge has over shadowed the other aspects of the matter resulting in his ultimate conclusion. Hence, the same would have to be noticed in its correct perspective as it would have bearing on the manner in which the possession was taken and the process to which Sri A. Nanjundachar is also a signatory. Firstly, it is to be noticed that the pleadings in the writ petition does not indicate that the Petitioners before the learned Single Judge themselves had taken such contention. In fact there is absolutely no pleading in that regard in the writ petition. However, in the interlocutory application filed seeking amendment, except for contending that Sri A. Nanjundachar had no right, title and interest in the property and that only a mortgage deed was executed without transfer of title, no document has been relied on. Despite the same, the learned Single Judge has proceeded as if the purchasers of the site were required to produce such document which is not the correct position. Be that as it may, the said aspect being a disputed question, in any event, could not have been decided in a writ petition more particularly when the said Sri A. Nanjundachar was not a party to the writ petition. As such, all findings rendered by the learned Single Judge relating to the inter-se right between the contesting Respondent herein and the said Sri A. Nanjundachar is not sustainable with regard to the title to the property as on the date of the acquisition.
10. Further, one more vital, aspect of the matter is that the said Sri A. Nanjundachar had filed an application seeking compensation on 02.11.1964, while the contesting Respondent filed the application claiming compensation in respect of the very same land on 13.12.1967 and the acquiring authority has deposited the award amount in the Civil Court on 28.02.1977. Though none of the parties have placed any material with regard to the ultimate consideration by the reference Court, the fact that there was rival claim for compensation in respect of the same land cannot be in dispute. The same in any event would have to be decided by the Court having jurisdiction, as contemplated u/s 30 and 31(2) of the LA Act. Therefore, the matter would have to be examined dehors the finding rendered by the learned Single Judge with regard to the validity or otherwise of the transaction between the contesting Respondent herein and Sri A. Nanjundachar inter-se, however keeping in view the right claimed by them as noticed from the records, whereunder the award notices have been issued to both of them based on the right claimed by them. This aspect would have to be kept in mind, and on that premise, the manner of the possession taken by the Revenue Inspector will have to be examined, also keeping in view the nature of the property.
11. Before considering the aspect of the manner of possession taken, in the background of the nature of the properties involved, the aspect as to whether the acquisition has lapsed also requires to be determined since the main relief granted by the learned Single Judge is in that regard. If in fact the acquisition has lapsed, all other aspects become inconsequential. Though the Petitioner in the writ petition had relied on Section 27 of the BDA Act and Section 11A of the Land Acquisition Act to press home their contention, the learned Single -Judge has negatived the same, but has thereafter proceeded to examine the same u/s 19 of the CITB Act. The said provision states that if the Board fails to execute the scheme within a period of seven years from the date of publication of the declaration, the scheme would lapse. In the instant case, it is no doubt true that the final notification was published in the gazette on 27.08.1964. As already noticed, the first of the suits instituted by the contesting Respondent himself was in the year 1969 and thereafter repeated suits have been filed. The contesting Respondent himself having engaged the acquiring authority in series of litigations relating to the property, thereby preventing the utilization of the extent of the property involved, cannot turn around to complain that the scheme has not been implemented or that the land has not been used for the purpose for which it was acquired. As noticed, during the course of the order, by the learned Single Judge, the sites were formed in the other areas where it was acquired, as per the plan perused by the learned Single Judge, except in the land which is the subject matter herein. While on this aspect, what cannot be lost sight is that the scheme related to a vast extent of 428.01 acres and the land in question is only an extent of 1.15 acres. That in itself would provide the answer to the question with regard to the non-utilisation of this small extent of land for a long period.
12. Further, the learned Single Judge has also noticed that Section 27 of the BDA Act is akin to Section 19 of the CITB Act. If in that background the legal position is noticed, it is seen that this Court has held that substantial compliance is sufficient and to hold the scheme as lapsed, there should be not mere time lapse, but there should be dereliction of duty. It is held so in the case of A. Krishnamurthy (since deceased) by L.Rs. v. Bangalore Development Authority and Ors. 1996 (3) KLJ 506 and in the case of
13. In the above circumstance, the question is as to whether the possession of the properties has been taken by the authorities depending on the nature of the property which it admits of. If the answer is in the affirmative, the subsequent process of the formation of the sites in the said land which has been validly acquired cannot remain a subject matter for consideration and the findings rendered in that regard also cannot be sustained. In such event, the subsequent formation of sites and auction conducted as also the prior demolitions in respect of the illegally occupied land cannot be commented upon in the proceedings of the present nature as the same would be beyond the scope of the instant writ petition. In order to determine this aspect of the matter, it would be necessary for us to once again reassess the documents from the original record which have been noticed above with regard to taking over possession of the notified lands. In that regard, we have already held that the procedure followed was in accordance with law. However, with regard to the manner of possession taken, keeping in view the nature of the property, it is once again necessary to keep in mind the answer rendered by the Full Bench, wherein it has been held that the manner of possession would depend on the nature of the property involved.
14. In the above background, in the instant case, it is seen that the property consisted of vacant land, land on which fruit bearing and other varieties of trees were grown, as well as certain structures. Insofar as the vacant land and the lands wherein the trees were grown, there can be no doubt that the possession of the same had been taken, having regard to the form of mahazar drawn, the signatories thereto and the report submitted. Hence, the same has vested with the acquiring authority. The mode of taking possession under a mahazar or panchanama is held by the Supreme Court to be the accepted procedure, in the case of
15. In the absence of the adjudication as stated above, the mahazar has to be assessed taking into consideration the signature of Sri A Nanjundachar as being relevant for the purpose. The contents of the said mahazar in addition to the land and the tree growth has referred to the temple and a house which is constructed. In a normal circumstance, since the possession mahazar refers to the structures also for having taken the possession and the same being attested by the panchayatdars, the said document would have been sufficient to establish that the possession of the entire land including structures has been taken, by BDA. However, the report made by the Revenue Inspector to the Land Acquisition Officer which has been extracted above, would indicate that the contesting Respondent was in physical possession of the house as on the date of drawing the mahazar. No doubt, he has been described as a tenant and the same is being disputed by the contesting Respondent herein. But, the fact remains that the Revenue Inspector has recognised that he was in physical possession of the house and was living in the house constructed therein. In what capacity he was residing therein becomes insignificant (though it would be relevant inter-se between him and Sri A. Nanjundachar) when he was shown to be the occupant at the point of acquisition. The Revenue Inspector has further recorded that the contesting Respondent had not signed the mahazar, but he had assured to go over to the office of the Special Land Acquisition Officer and sign the possession mahazar. This endorsement in the report would indicate that though the possession of all other properties had been taken as on 28.12.1976 when the mahazar was prepared and the report was submitted, the contesting Respondent was at that point, living in the house constructed therein and the physical possession had not been delivered on that day. Except for mentioning about one house in the list of the mahazar, there is nothing to indicate that he had been dispossessed from the house wherein he was in occupation on 28.12.1976.
16. Further, in addition to the above, since the report, itself mentions that he had stated that he would sign the mahazar subsequent thereto, it was necessary for the Appellant herein (BDA) to produce such document to indicate that he has thereafter voluntarily handed over possession of the house also. If such voluntary act was not there, it was incumbent on the Revenue inspector to hold proceedings for evicting him from the house and take possession in the presence of panchayatdars. In the absence of the same, what would have to be concluded is that the possession of all other extent of properties and the malkies had been taken by the Appellant, but, the possession of the house wherein the contesting Respondent was residing alone still remained with the contesting Respondent though the Appellant had described him as a tenant. In fact, the very contention on behalf of the Appellant-BDA in the written synopsis that the sites were formed in the remaining area, except the area where the temple building and a RCC house building is situated would lend credence to the fact that the contesting Respondent has remained in possession of the house throughout. Hence, taking possession of the house at this juncture would not arise as the scheme has been completed and the sites formed have already been allotted as well as auctioned. Therefore, the contesting Respondent would be entitled to retain the house as having been excluded from the process of acquisition, though it had been included initially. The contention of the Appellant that the contesting Respondent had no locus standi as he had sold the property and the reliance placed on the decision of the Supreme Court in the case of
17. As we have come to the categorical conclusion that the right of the contesting Respondent is to retain possession of the house only and since we have also held that the other extent of the property has vested with BDA and valid possession was taken, the contesting Respondent had no right to assail the action of the BDA in forming the sites in the said area and the manner of disposal of the same by the BDA in a petition of the present nature. Hence, the findings and conclusion reached by the learned Single Judge on all other aspects of the matter are also not sustainable.
18. Further, since we have concluded that the contesting Respondent has continued in possession of the house and that he is entitled to retain the same, the appropriate demarcation shall be made in line with the layout that has been formed by the EDA. As the dimension is not made available to this Court, we clarify that if the house is enclosed by a compound wall, the same shall be retained. If the compound wall is not existing the BDA snail mark out the site leaving sufficient set back around the constructed portion as per the regulations. The contesting Respondent shall also be provided access to the property from the road formed in the layout.
19. In the result, we pass the following;
ORDER
(i) The order dated 19th and 20th November 2004 passed by the learned Single Judge in W.P. No. 3317/2004 (LA-BDA) is set aside.
(ii) It is declared that the Appellant -BDA has taken valid possession of the property bearing Sy. No. 137, Thippasandra Village, K.R. Puram Hobli. Bangalore South Taluk, measuring 1 acre 15 guntas. only to the remaining extent i.e., excluding the constructed house which was in the physical possession of Late D. Narayanappa s/o Late Doddaiah and family members as on 28.12.1976.
(iii) It is further declared that the house portion in the occupation of the family members of Late D. Marayanappa in the erstwhile Sy. No. 137, Thippasandra Village, K.R. Puram Hobli, is deemed to have been excluded from the scheme of acquisition for HAL II Stage Layout of BDA.
(iv) The decision of the BDA with regard to the size of the plot (dimension of the site) on which the said house is situate and demarcation, as also access thereto based on the observation made above would be final and shall bind the parties for the purpose of enjoyment of the same in future.
(v) The appeals are allowed in part, in the above terms.
(vi) Parties to bear their own costs.
