@JUDGMENTTAG-ORDER
Ram Mohan Reddy, J.@mdashPetitioner claiming to be the owner of land measuring 3 acres and 9 guntas in Sy. No. 44/2 amongst other extents of land in Sy. Nos. 44/1A, 44/1B and 45 at Yalachenahalli, Uttarahalli Hobli, Bangalore South Taluk, aggrieved by the notification dated 29.12.1988 gazetted on 6.4.1989 issued u/s 17(1) of the Bangalore Development Authority Act 1976, for short ''Act'' and the final declaration dated 9.5.1994 gazetted on 18.5.1994, filed W.P. No. 34243/1994 whence, a learned Single Judge by order dated 7.2.1997, quashed the final declaration issued u/s 19(1) of the Act, reserving liberty to the BDA to proceed with the acquisition from that stage. Petitioner filed objections and an application to delete from acquisition the aforesaid lands, following which, the BDA passed a resolution recommending the de-notification of the said lands and forwarded the same by endorsement dated 6.11.1992 Annexure ''B''. However by communication dated 18.2.2003 Annexure ''C'' informed the Government to de-notify land in Sy. No. 44/1 and as possession of the land in Sy. No. 44/2 was taken stated that, it cannot be de-notified, while, land in Sy. No. 45 was stated to be classified as a gundu thopu. In addition, the BDA, as a matter of fact, stated that since the lands surrounding Sy. Nos. 44/1 and 44/2 as well as Sy. No. 45 are not acquired, are landlocked, hence unable to form a layout and if it tried to do so, the expenses would be very heavy and enclosed a sketch Annexure ''D''. According to the petitioner, the State Government issued a notification dated 4.10.2007 Annexure ''E'' de-notifying the land in Sy. No. 44/1. It is the allegation of the petitioner that physical possession of the land was not taken by the BDA and the lands continued in petitioner''s possession as agricultural lands subject to land revenue, as certified in the RTC pahani for 15 years prior to 2009-10 Annexures H1 to H5. It is further allegation of the petitioner that, the final declaration though is of the year 1994, nevertheless, BDA did not substantially complete the scheme by forming the layout known as "Banashankari V stage" and did not do so, despite passage of two decades, leading to failure to implement the scheme within five years, hence the scheme lapsed. In the circumstances, petitioner''s representation to the BDA to issue an endorsement over lapsing of the scheme, which when not responded to has presented this petition.
2. The petition when filed was to quash the notification dated 18.5.1994 u/s 19(1) of the Act Annexure ''G'' in respect of land in Sy. No. 44/2 measuring 3 acres 9 guntas, Misc. W. 2280/2010 for amendment of the writ petition was allowed by order dated 27.8.2010 whence, amended petition dated 31.8.2010 was filed amending the prayer column to include the reliefs: (i) to quash the preliminary notification Annexure ''F'' u/s 17(1) of the ''Act'' and the final notification Annexure ''G'' u/s 19(1) of the Act in respect of the land bearing Sy. No. 44/2; (ii) for a declaration that the acquisition proceedings are not complete and the BDA cannot execute the scheme since the scheme has lapsed and; (iii) for a writ of mandamus restraining the respondent-BDA from interfering with the peaceful possession and enjoyment of the property in question.
3. I.A. 1/2012 dated 29.8.2012 under Order VI Rule 17 CPC filed by the petitioner to amend the prayer to include the relief to quash the final declaration dated 17.9.1997 Annexure ''Q'' was allowed by order dated 3.9.2012. I.A. 1/2011 under Order 41 Rule 27 of CPC filed by the petitioner to place on record Annexures J, K and L was allowed by order dated 2.1.2012 where afterwards, the respondent-BDA filed statement of objections dated 30.1.2012 followed by the petitioner''s rejoinder dated 6.2.2012 to place on record three documents Annexures P1 to P3.
4. In the statement of objections of the respondent-BDA it is contended that in compliance with the order in W.P. No. 34243/1994, the Government of Karnataka issued a final notification 17.9.1997 Annexure R1 followed by the award dated 31.08.1998 of the Special Land Acquisition Officer in LAC Nos. 265/1997-98 and 124/1997-98. Petitioner on notice, filed objections, which the Board in its meeting held on 1.3.1997, passed a resolution No. 65/1997 overruling the objections of the petitioner while recommending to the Government to sanction the scheme and issue a final notification. In addition, it is stated at paragraph 4 that possession of land measuring 3 acres 9 guntas of Yalachenahalli in Sy. No. 44/2 was taken on 25.8.2000 under mahazaar - Annexure R3, the description of the land as Annexure R4 and handed over to the Engineering Section of the BDA to form the layout. It is further stated that a notification dated 8.10.2009 Annexure R5 is issued u/s 16(2) of the Land Acquisition Act, 1894.
5. According to the respondent-BDA, a layout is formed 3 acres 9 guntas of land in Sy. No. 44/2 in accordance with the proposed layout plan Annexure R6 and the photographs Annexures R7 and R8. It is stated that BDA acquired 1458.21 acres spread over 10 villages to form BSK V stage layout and the scheme is substantially implemented and therefore, the contention that the scheme had lapsed for non-implementation within five years is without substance. It is lastly stated that no reliance can be placed upon the note dated 21.12.2009 since it is unofficial and the BDA having taken possession of the land, its de-notification does not arise.
6. Having heard the learned Counsel for the parties, perused the pleadings. What is striking obviously is that the respondent BDA formulated a scheme to form a layout of residential sites in the name of Banashankari V Stage, in Bangalore City, by issuing preliminary notification dated 29.12.1988 gazetted on 06.04.1989 Annexure ''F'' u/s 17(1) of the Act proposing to acquire lands measuring 1851 acres 39 guntas comprised in 10 villages namely, Uttarahalli, Marasandra, Vaddarapalya, Doddakalasandra, Yalachenahalli, Halagavadarahally, Channasandra, Bikasipura, Vasanthapura and Konanakunte. Suffice it to notice that 228 acres ran out of 1851 acres 39 guntas, comprised in several survey numbers of Yalachenahalli. The final notification u/s 19(1) of the ''Act'', dated 09.05.1994 Annexure ''G'' was for acquisition of 1458 acres 21 guntas, from out of which land in Yalachenahalli was 125 acres 3 guntas. This final declaration insofar as petitioner''s lands described at serial Nos. 264, 265 and 266, relating to survey Nos. 44/1, 44/2 and 45, was quashed by order dated 07.02.1997 in W.P. No. 34243/1994 Annexure ''A'' reserving liberty to the respondent - BDA to continue with the acquisition proceedings from that stage onwards by taking on record the objections filed by the petitioner. The respondent - BDA having considered the objections issued a final notification u/s 19(1) of the ''Act'', on 16.09.1997 Annexure ''R1'' to the statement of objections, for acquisition of 23 acres 34 guntas of land in Yalachenahalli as against 228 acres of land. Though Annexure R1 is incomplete, nevertheless Annexure ''Q'' discloses approximately 500 acres of land acquired as against 1851 acres 39 guntas proposed for the scheme.
7. It is not in dispute that the BDA did not take possession of the lands in survey Nos. 44/1 and 45 belonging to the petitioner nor was an award passed in respect of the said survey numbers, while in fact, the State Government by notification dated 04.10.2007 Annexure ''E'' withdrew from acquisition, land measuring 3 acres 39 guntas in survey No. 44/1, while land measuring 1 acre 7 guntas in survey No. 45 was classified "Gundu Thopu". In fact, from out of 23 acres 34 guntas of lands in Yalachenahalli, subject matter of final notification Annexure G, if 5 acres 6 guntas (3 acres 9 guntas in survey No. 44/1 and 1 acre 7 guntas in survey No. 45), is excluded what remain is 18 acres and 28 guntas. That extent of land too was reduced to 9 acres 12 guntas comprised in three survey numbers that is, survey Nos. 42, 43 and 44/2, measuring, 3 acres 20 guntas, 2 acres 23 guntas and 3 acres 9 guntas, respectively, possession of which is said to be taken on 22.11.2000 and 25.08.2000, in terms of the notification u/s 16(2) of the Land Acquisition Act, 1894 duly gazetted on 08.10.2009 Annexure ''R5''. The copy of the proposed layout plan in survey No. 44/2 of Yalachenahalli Annexure ''R6'', does not certify either sanction or permission, but discloses that lands in survey Nos. 42 and 43 measuring 3 acres 20 guntas and 2 acres 23 guntas are fully developed and no layout is formed. Thus, BDA proposed Banashankari V Stage layout in Yalachenahalli village, in land measuring 3 acres 9 guntas out of survey No. 44/2 belonging to the petitioner.
8. Sri M.I. Arun, learned Counsel for the respondent - BDA submits that though the total extent of land proposed to be acquired for the scheme under the preliminary notification was 1851 acres 39 guntas, comprise in 10 villages nevertheless, the final notification Annexure ''Q'' was for 500 acres, nevertheless, Banashankari V Stage layout was implemented substantially in all the villages put together. According to the learned Counsel, the scheme as such will not lapse merely because 3 acres 9 guntas of lands in survey No. 44/2 out of 225 acres was proposed for formation of the layout under the preliminary notification and 23 acres 24 guntas proposed in the final notification Annexure ''G'' and that substantial implementation of the scheme must be construed by reckoning the formation of the layout in all the 10 villages. Learned Counsel hastens to add that though the land surrounding the petitioner''s land in survey No. 44/2 was fully developed by private layouts, nevertheless Banashankari V Stage layout was proposed be formed in Yalachenahalli by making sites in survey No. 44/2. Learned Counsel further submits that the BDA Act does not postulate preponderance of the complete utilization of the acquired lands as held by this Court in the unreported opinion dated 08.03.2012 in W.A. 478/2012 in the case of Kurulingappa Vs. The Bangalore Development Authority and another, following the decision of the Apex Court in Girnar Traders (3) v. State of Maharashtra reported in
9. Keeping in mind the aforesaid facts and pleadings two questions fall for consideration namely:
a. Whether possession of the lands in question were taken by the BDA?
b. Whether the improvement scheme Banashankari V Stage layout is substantially implemented?
10. It is no doubt true that there are no hard and fast rules laid down as to what would be sufficient to constitute taking possession of the acquired lands, since, it depends on the facts and circumstances of the each case as held by the Apex Court in
11. In the instant case, the BDA in its statement of objections states that under the possession mahazaar Annexure ''R3'', possession of petitioner''s land was taken on 25.08.2000, duly described in the map Annexure ''R4'', while Annexure ''R5'' is the notification dated 08.10.2009 u/s 16(2) of the Land Acquisition Act, 1894.
12. A perusal of Annexure ''R3'' discloses that it is in a cyclostyled form while blanks are filled up in hand written stating that on 27.03.1999 possession was taken over by the Revenue Inspector in the presence of five signatories whose names and addresses are not forthcoming against the column for recording the same. In the absence of the names and addresses of the so called witnesses to the mahazaar, the identity of those persons is not established. Therefore, it cannot be said that the mahazaar Annexure ''R3'' said to have been drawn in exercise of the jurisdiction u/s 16 of the Land Acquisition Act, 1894 by the Revenue Inspector satisfies the requirement of the principles laid down in Prahalad Singh''s case. Yet again it must be noticed that neither Annexure ''R3'' nor the pleadings disclose notices issued to the petitioner calling upon him to deliver vacant possession of the acquired property nor the signature of the petitioner on Annexure ''R3'' against the column . In fact against that column is affixed the signature of the Assistant Executive Engineer, No. 3, South Sub-Division, Bangalore Development Authority, BDA Shopping Complex. Undoubtedly, the signatory is not the owner of the land in question and the signature of the Assistant Executive Engineer against the column is of no consequence. Strangely though the surveyor attached to the Special Land Acquisition Officer having affixed his signature to Annexure ''R3'' records the date as 25.08.2000. Moreover, Annexure ''H3'' - the RTC Phani discloses the name of the petitioner as the owner even during the year 2009 - 10 and does not disclose BDA having been in possession. Against the column ''nature of cultivation'', it is shown as ''Self'', hence, belies the contention that BDA is in possession of the lands. The submission that the positive photographs at Annexures R7 and R8 to the statement of objections discloses that BDA has taken up civil works of forming a layout of sites in survey No. 44/2, is far from being acceptable evidence of a fact. The negatives of the photographs and the Bill of Costs involved, nor the affidavit of the person who took the photographs are not forthcoming. The plan of the proposed layout Annexure ''R6'' is neither approved nor sanctioned. Thus, Annexures R6 to R8 are not in the direction of establishing a fact, prima facie, of possession.
13. Regard being had to the infirmities in Annexure ''R3'' - Mahazaar, all that can be said is that it is not a reliable document for having taken possession of the petitioner''s land. This view is supported by a decision of this Court in
14. In conclusion over point No. 1, it cannot be said that Annexure ''R3'' mahazaar and the notification Annexure ''R5'' do evidence the factum of the BDA having taken possession of the lands belonging to the petitioner, subject matter of acquisition notification either on 27.03.1999 or on 25.08.2000.
15. Section 27 of the BDA Act, 1976 provides that where within a period of five years from the date of the publication in the official gazette of the declaration under Sub-section 1 of Section 19 of the Act, the authority fails to execute the scheme substantially, the scheme shall lapse and provisions of Section 36 shall become inoperative. This provision of law came up for interpretation before the Division Bench of this Court in the case of
16. In order to appreciate the contention of the learned Counsel for the BDA, over substantial implementation of the scheme known as Banashankari V Stage, it is useful to refer to certain statistical details. Preliminary notification Annexure ''F'' proposed acquisition of 1851 acres and 39 guntas, while under the final notification dated 09.05.1994 Annexure ''G'' is for acquisition of 1458 acres and 21 guntas, which was quashed by this Court in several writ petitions filed by land loosers, and one such order is Annexure ''A'' in the petition filed by the petitioner herein. In compliance with the direction in the said petitions, the BDA on a reconsideration, issued the final notification dated 16.09.1997 Annexure ''R1'' none other than Annexure ''Q'' acquiring 784 acres 37 guntas comprised in 10 villages. Land proposed for acquisition in Yalachenahalli under the preliminary notification is 228 acres, while the final notification is 23 acres 34 guntas and though possession of 9 acres and 12 guntas is said to have been taken nevertheless out of that extent, 6 acres 3 guntas is said to be totally built up and hence excluded from acquisition and what remains is 3 acres 9 guntas. Thus, the land utilization in Yalachenahalli is a miniscule 1.3% of the total area proposed to be acquired in Yalachenahalli and 0.16% of the total extent of 1851 acres 39 guntas proposed to be acquired for Banashankari V Stage. Thus, BDA is unable to implement the scheme in the entire extent of 1851 acres 39 guntas but has done so in about 500 acres, which is not even 1/3rd of the scheme.
17. It is no doubt true that in the case of
18. Yet again it is true that in Kurulingappa''s case supra the Division Bench observed that the utilization of the land need not be complete and there is no preponderance that substantial implementation of the scheme is not carried out. Viewed in that perspective, a further question arises as to whether the acquisition of 3 acres 9 guntas of land from out of 228 acres in Yalachenahalli and its utilization would constitute substantial compliance of the scheme. In the circumstances, it is hazardous to record a finding in the affirmative, over the said question since obviously, the lands surrounding the petitioner''s land in question is fully built up and would therefore, not form a composite block for implementing the scheme.
19. Very interestingly it must be noticed that though the preliminary notification and final notification are issued during the year 1990 onwards nevertheless till 2009, when the notification u/s 16(2) was issued, nothing appreciable is done for over two decades. The long lapse of time in not implementing the scheme in Yalachenahalli only demonstrates the dereliction of statutory duties without justification by the BDA. It is high time to BDA conducts a self audit over discharge statutory duties by its officers and if found to be incompetent, to weed them out and pave way for competent persons. The delay in the implementation of the Banashankari V Stage scheme, brings to fore serious infirmities in the business of the BDA. It is not the only scheme in which this Court has had to make such an observation, since in many a scheme propounded by the BDA has ultimately resulted in de-notification, exclusion of lands from acquisition and failure to take possession of large tracks of lands proposed for acquisition.
20. In conclusion over point No. 2, in the absence of satisfactory explanation over the alleged possession having been taken on 27.03.1999 or 25.08.2000, though the final notification was issued on 16.09.1997, the proceeding smacks of lethargy, negligence and dereliction of duty. Since the learned Counsel for the respondent - BDA submits that after sites were formed in nine other villages by utilizing the extent of lands acquired and possession taken over, those sites are allotted to and most of the allottees have put up construction of buildings and therefore, it would not be appropriate to hold that the scheme is not substantially implemented and hence lapsed. In the light of the answers to the aforesaid two points, this petition is allowed declaring that Banashankari V Stage scheme layout is inoperative over the petitioner''s land in question. This order should not be taken as if the petitioner is entitled to do anything with the land, but will have to follow the rule of law in the matter of development of the said land, strictly in accordance with The Karnataka Town and Country Planning Act and BDA Act.
In the peculiar facts of the case, no order as to costs.
