H.A. Gopinath and Veena Gopinath Vs The Special Land Acquisition Officer Bangalore Development Authority, The Commissioner Bangalore Development Authority and Ramani Arun Kumar and W/o late K. Arun Kumar

1. This appeal by the petitioner in writ petition No. 51392 of 2004 is filed being aggrieved by the order dated 01.08.2007 wherein the learned Single Judge has by a common order dismissed the writ petition Nos. 51392 of 2004 and writ petition No. 20000 of 2004.

2. The essential facts of the case leading up to this appeal with reference to the rank of the parties before the learned Single Judge as are follows:

The appellants herein filed writ petition No. 20000 of 2004 seeking for a writ of mandamus directing the 1^st and 2^nd respondents Special Land Acquisition Officer and Commissioner, Bangalore Development Authority not to release the compensation with regard to the acquisition of scheduled land and property to the 3^rd respondent in the writ petition and to release the compensation amount in respect of the schedule property to the petitioner. It is averred that the schedule property comprising Sy. No. 16 measuring 11 acres 26 guntas and 13 guntas in Sy. No. 15/3 totally measuring 11 acres and 39 guntas situated at Amani Byrathi Khane Village, K.R. Puram Hobli, Bangalore South Taluk, as per the description given to the schedule to the writ petition was the property owned by late Sri V.K.K. Menon and Smt. Ammu Menon. Having purchased the land under registered sale deed dated 17.12,1969, the said property was treated as a joint family property by late Sri V.K.K. Menon and Smt. Ammu Menon. The family members of the said family entered into a family arrangement dated 14.02.1978 which was reduced to writing and each family member of late Sri V.K.K. Menon was allotted an undivided share in the schedule property. Smt. Ramani Arun Kumar, 3^rd respondent in the writ petition, the youngest daughter of late Sri V.K.K. Menon and her mother Smt. Ammu Menon entered into an agreement dated 30.08.1995 with the other co-owners of the schedule property agreed to transfer the undivided shares held individually in the schedule property in favour of the 3^rd respondent on payment of consideration of Rs. 28,80,000/- and relinquished their shares in favour of the 3^rd respondent and deeds of disclaimer and relinquishment were executed on 15.12.1995 in favour of the 3^rd respondent Since the 3^rd respondent did not have money to pay Rs. 28,80,000/- to the other co-owners who had relinquished their share, she entered into an agreement of sale of the schedule property with the writ petitioners for Rs. 33,60,000/-to be paid at the time of registration of sale in favour of the petitioners. The petitioners agreed to pay the co-owners of the schedule property a sum of Rs. 28,80,000/- and a sum of Rs. 4,80,000/- to the 3^rd respondent at the time of registration of the schedule property and immediately after the said agreement amount was paid to the co-owners and petitioners were put in possession of the property. However, 3^rd respondent did not show any sign of honouring the commitments as per the agreement of sale and insisted for further payment towards business commission in respect of the sale of the schedule property and therefore, original suit No. 211 of 1999 was filed praying to restrain the 3^rd respondent from interfering with the peaceful possession and management of the schedule property and an interim order of injunction has been granted restraining the 3^rd respondent from interfering with the peaceful possession of the schedule property of the petitioners in O.S. No. 211 of 1999 and the said metric order has become final. It is further averred that a public notice was issued on 03.02.2003 regarding the acquisition proceedings under Sub-sections (1) and (3) of Section 17 of the Bangalore Development Authority Act, 1976 and Section 4(2) of the Land Acquisition Act, 1894 in respect of the schedule property. The petitioners filed objections to the said notifications dated 03.02.2003 and the petitioners had not received any reply from the 2^nd respondent-Bangalore Development Authority to the objections filed by the petitioners and a public notification has been published in the Gazette dated 23.02.2004 disclosing the late Sri V.K.K. Menon and the 3^rd respondent are anubhavdars in respect of the schedule property and being aggrieved by the said notifications a writ petition was filed contending that, the petitioners having entered into an agreement of sale with the 3^ld respondent in respect of the schedule property and having already paid 90 per cent of the sale consideration and having been put in possession of the property pursuant to the agreement of sale, are entitled to compensation awarded in respect of the schedule land acquired by the Bangalore Development Authority and the 3^rd respondent is not entitled to compensation and accordingly, the writ petition was filed with the above said prayers.

3. It is the further case of the appellants that after filing of the writ petition No. 20000 of 2004, they were served with notice of Award u/s 12(2) of the Land Acquisition Act from the respondents for acquisition of land in Sy. No. 15/3 of Amani Byrathi Khane Village, K.R. Puram Hobli, Bangalore South Taluk and for formation of Arkavathy layout. It is the contention of the petitioners that the schedule property as described in the schedule to the said writ petition is not the subject matter of the acquisition as per the notice served u/s 12(2) of the Land Acquisition Act and they have entered into an agreement of sale with Smt. Ramani Arun Kumar, and a suit is already filed before the civil Court seeking for specific performance of the agreement of sale dated 30.08.1995 and an order of temporary injunction is operating against the said Smt. Ramani Arun Kumar in respect of the properties measuring 11 acres and 36 guntas comprising Sy.Nos. 15/3 and 16 situated at Amani Byrathi Khane Village, K.R. Puram Hobli, Bangalore South Taluk and under the guise of the acquisition proceedings in respect of the said land the respondents are trying to interfere with the property in possession of the petitioners and wherefore writ petition No. 51392 of 2004 was filed by the appellants herein to quash the notifications issued for acquisition and for a direction to the respondents not to interfere with the peaceful possession of the petitioners with regard to the schedule property and by way of amendment a prayer for declaration that the property described in the schedule to the writ petition is not acquired by the respondents. Both the writ petitions were resisted by the respondents. The 3^rd respondent in writ petition No. 20000 of 2004 was impleaded in writ petition No. 51392 of 2004. The 3^rd respondent in writ petition No. 20000 of 2004 disputed the averment made in the petition regarding execution of the agreement of sale in favour of the petitioners therein and further contended that the petitioners are not entitled to compensation and instead the 3^rd respondent is entitled to compensation as petitioners have not acquired any right, title or interest to the schedule property which has been acquired. The Bangalore Development Authority resisted both the writ petitions contending that the subject matter of the property in both the writ petitions is the same and there was a mistake in mentioning the name of the village in the notice issued to the appellants herein u/s 12(2) of the Land Acquisition Act. After the issuance of the preliminary notification, Bangalore East Taluk was formed and the same was carved out of the portion of the territorial jurisdiction of Bangalore North and South Taluks and the appellants had filed objections to the preliminary notification issued for acquisition of the schedule property. The same has been considered and rejected and the petitioners are not entitled to any relief in the writ petitions. The learned Single Judge after considering the contentions of the learned Counsel for the parties, held that the prayer of the appellants in writ petition No. 20000 of 2004 and writ petition No. 51392 of 2004 was inconsistent as in writ petition No. 20000 of 2004, the appellants sought for a direction to restrain the respondents from handing over the amount of compensation to the 3^rd respondent in the writ petition and did not challenge the acquisition proceedings of the schedule property and contended that petitioners were entitled to compensation awarded in respect of the lands acquired as per the schedule given in the writ petition and in writ petition No. 51392 of 2004 the stand taken by the appellants was inconsistent as it is contended that the lands in respect of which agreement of sale was entered into between Smt. Ramani Arun Kumar and the appellants herein was not in respect of the land acquired as per the notice issued u/s 12(2) of the Land Acquisition Act. The 3^rd respondent in writ petition No, 20000 of 2004 is not made a party in writ petition No. 51392 of 2004. The learned Single Judge further held that the relinquishment deed executed in favour of the 3^rd respondent in the writ petition No. 20000 of 2004 were not registered and did not confer any title on the 3^rd respondent to execute an agreement of sale in favour of the appellants herein and mere execution of agreement of sale does not confer any right upon the appellants in respect of the schedule property. The learned Single Judge further held that the contention of the appellants that the property in respect of which agreement of sale was entered into between the appellants and Smt Ramani Arun Kumar, 3^rd respondent in writ petition No. 20000 of 2004 was in respect of a property which is not the subject matter of acquisition by the Bangalore Development Authority cannot be accepted as the appellants having regard to their conduct and the averment made in writ petition No. 20000 of 2004 cannot be allowed to contend that there are two properties, one which is the subject matter of acquisition by the Bangalore Development Authority and another property which is the subject matter of O.S. No. 211 of 1999 and the subject matter of the said property in both the writ petitions is the same and wherefore the writ petitioners were not entitled to relief in both the writ petitions and dismissed both the writ petitions by a common order dated 01,08.2007.

4. Being aggrieved by the order of dismissal of both the writ petitions, the writ petitioners have preferred this appeal. Learned Counsel for the appellants submitted that the description of the property acquired as per the notice issued u/s 12(2) of the 1/and Acquisition Act served upon the appellants is different from the description of the property which is the subject matter of agreement of sale entered into with Smt. Ramani Arun Kumar, 3^rd respondent in writ petition No. 20000 of 2004 and the learned Single Judge was not justified in holding that appellants cannot be said to be aggrieved persons as there is an agreement of sale executed in favour of the appellants which would constitute sufficient right to maintain a writ petition when the appellants have been put in possession of the property. Pursuant to the agreement of sale, 90 per cent of the consideration amount has already been paid and a suit for specific performance is pending consideration before the Civil Court in O.S. No. 211 of 1999 on the file of the Principal Civil Judge (Junior Division), Bangalore Rural. In support of his contention he has relied upon a decision of the Hon''ble Supreme Court in Himalaya Tiles and Marble (P) Ltd. Vs. Francis Victor Coutinho (dead) by LR''s., and the full Bench decision of the Madras High Court in the case of Seethalakshmi Ammal Vs. The State of Tamil Nadu and another, .

5. Learned Counsel for the respondents-1 and 2 submitted that the subject matter of both the writ petition No. 2000 of 2004 and writ petition No. 51392 of 2004 is the same. In view of the contention taken in writ petition No. 20000 of 2004 seeking for compensation awarded in respect of the acquired lands, the appellants could not be permitted to challenge the acquisition and contend that the schedule property is not the subject matter of acquisition arid in fact the schedule property in both the writ petitions is the same. Taking advantage of the mistake in mentioning the name of the village due to the subsequent formation of Bangalore East Taluk, the appellants are to trying to take undue advantage of the said mistake which may not be countenanced and the learned Single Judge was justified in dismissing both the writ petitions. The learned Counsel for the 3^rd respondent argued in support of the order of the learned Single Judge. We have given our careful consideration to the submissions of the learned Counsel for the parties and scrutinised the material on record.

6. The material on record would clearly show that writ petition No. 20000 of 2004 was filed seeking for a writ of mandamus directing the respondents-1 and 2 to release the compensation amount in respect of the schedule property comprised in Sy. Nos. 15/3 and 1.6 measuring 11 acres and 39 guntas situated at Byrathi Khane Village, K.R. Puram Hobli, Bangalore East Taluk. The acquisition of the schedule property is not challenged in the said writ petition and the only relief that was sought for in the writ petition is that the compensation in respect of the acquired land is payable to the petitioners and not to the 3^rd respondent. The 3^rd respondent had ceased to be the owner and the writ petitioners had acquired titled to the schedule property. However, after receiving notice u/s 12(2) of the Land Acquisition Act, writ petition No. 51392 of 2004 is filed contending that what is acquired as per the acquisition proceedings by the respondents-1 and 2 is not the property which is the subject matter of agreement of sale between the petitioners and Smt. Ramani Arun Kumar and as per the description of the property the acquisition is entirely different as the property is described as Sy. Nos. 15/3 and 16 measuring 11 acres and 39 guntas situated in Amani Byrathi Khane Village, K.R. Puram Hobli, Bangalore South Taluk. The material on record would clearly disclose that there is no merit in the contention of the learned Counsel for the appellants that the subject matter of the property which was agreed to be sold in favour of the appellants by Smt. Ramani Arun Kumar in an agreement of sale is different from the land that is acquired by the respondents. The acquisition proceedings is initiated for forming the Arkavathy Layout and the appellants are trying to take undue advantage of a mistake that has occurred regarding the village in which the land acquired is situated and having regard to the averment made in writ petition No. 20000 of 2004 that the schedule property in the said writ petition is acquired by the Bangalore Development Authority and award is also passed and the appellants are entitled for compensation as they have acquired interest in the acquired lands and the 3^rd respondent in the writ petition is not entitled to any compensation. It is not open to the appellants to contend in the subsequent writ petition No. 51392 of 2004 that the subject matter of acquisition is not the property which is the subject matter of the agreement of sale. The averment made in the objection statement by the Bangalore Development Authority would clearly show that after the issuance of preliminary notification, Bangalore East Taluk was carved out of the territorial jurisdiction of Bangalore North and Bangalore South Taluks and wherefore there was a mistake in mentioning the name of the village and showing the property as located in Bangalore South Taluk. Though the property is described as property situated at Amani Byrathi Khane Village, K.R.Puram Hobli, Bangalore South Taluk in the preliminary notification in any view of the matter it is not the contention of the appellants that there are two properties the lands comprised in Sy. Nos. 15/3 and 16 totally measuring 11 acres and 39 guntas situated in Byrathi Khane Village, K.R. Puram Hobli, Bangalore East Taluk and lands measuring 11 acres and 39 guntas in Sy. Nos. 15/3 and 16 situated at Amani Byrathi Khane Village, K.R. Puram Hobli, Bangalore South Taluk that appellants have acquired title in respect of both the properties answered the schedule given in both the writ petitions regarding the village in which the land comprised in Sy. Nos. 15/3 and 16 totally measuring 11 acres and 39 guntas is situated in Amani Byrathi Khane Village, K.R.Puram Hobli, Bangalore South Taluk. However, in writ petition No. 20000 of 2004 it is described Byrathi Khane Village, K.R. Puram Hobli, Bangalore East Taluk whereas in writ petition No. 51392 of 2004 the village is described as Amani Byrathi Khane Village, K.R. Puram Hobli, South Taluk. In the description of the schedule of the property in both the writ petitions is the same and wherefore the contention of the appellants that the property that is acquired by the respondents which is the subject matter of writ petition in writ petition No. 51392 of 2004 is different from the schedule property in writ petition No. 20000 of 2004 is misconceived and the contention of the learned Counsel in that, behalf that they are separate properties cannot be accepted. It is clear from the material on record that the appellants herein had filed objections to the preliminary notification issued by the Bangalore Development Authority and the same has been considered and rejected. The property is acquired for formation of a residential layout and wherefore the acquisition is for a public purpose and wherefore appellants contend that they have not been given opportunity regarding acquisition of the schedule property. Even otherwise be that as it may. It is clear from the material on record that apart from claiming that the 3^rd respondent in writ petition No. 20000 of 2004 has become the owner of the schedule property in view of the relinquishment deeds executed by the co-owners and that she has executed an agreement of sale in favour of the appellants there is no material whatsoever to show that their name has been entered in the revenue records and the execution of agreement of sale has been disputed by the 3^rd respondent in writ petition No. 20000 of 2004 and the same is the subject matter of a suit in O.S. No. 211 of 1999 on the file of the Principal Civil Judge (Junior Division), Bangalore Rural District, Bangalore. However, the relinquishing deeds executed in favour of the 3^rd respondent in writ petition No. 20000 of 2004 is not registered and the validity of the agreement of sale executed in favour of the appellants is pending consideration and a specific endorsement of the said agreement is pending consideration in suit O.S. No. 211 of 1999 and wherefore the appellants have miserably failed to prove that the acquisition of the property which is the subject matter of the acquisition by the respondents is not the property in respect of which the agreement of sale has been entered into between the appellants and the 3^rd respondent in writ petition No. 20000 of 2004 and having regard to the transactions that have taken place as referred to above, the learned Single Judge has rightly held that having regard to the writ petitions filed by the appellants in writ petition No. 20000 of 2004 and writ petition No. 51392 of 2004 are devoid of merits and the same are liable to be dismissed and we do not find any ground to take a different view from the view taken by the learned Single Judge which is based upon the material on record. Accordingly, we hold there is no merit in the appeal and pass the following order:

The appeal is dismissed.