Annayappa Rep by his GPA, holder B. Venkatesh and Others vs State of Karnataka and Bangalore Development Authority

Mohan Shantanagoudar

Petitioners have sought for the following reliefs:-

i) Issue a writ of mandamus directing the respondents not to enforce the scheme called "Layout between Hosur Road and Sarjapur Road" as against the 28 guntas of land in Sy. No. 49/10 of Jakkasandra Village, Begur Hobli, Bangalore South Taluk more fully described in the schedule below in view of lapsing of acquisition in terms of Section 27 r/w. Section 36 of the Bangalore Development Authority Act, 1976, based on the judgment of the Hon''ble Supreme Court in Offshore Holdings Pvt. Ltd. Vs. Bangalore Development Authority and Others, .

ii) Declare that the acquisition proceedings initiated under the provisions of BDA Act, 1976 for the scheme called "Layout between Hosur & Sarjapur Road" has lapsed u/s 27 in view of the fact that there is no vesting of the land and land is free from acquisition.

Case of the petitioners is as under:-

The first petitioner is the owner of the land bearing Sy No. 49/10 of Jakkasandra Village, Begur Hobli, Bangalore South Taluk, measuring 1 acre 9 guntas. The said land along with various other properties came to be acquired under preliminary notification dated 15.12.1984 and the final notification dated 28.11.1986 for the purpose of formation of "Layout between Hosur & Sarjapur Road" by BDA. Out of the said area, the award came to be passed in respect of 28 guntas on 26.2.1990. For rest of the area award is not passed.

These writ petitions are concerned with regard to 28 guntas of the land for which the award is passed. Undisputedly the possession of the property is not taken and the notification is not issued u/s 16(2) of the Land Acquisition Act (for short hereinafter referred to as ''LA Act'') and though the award was passed on 26.2.1990, the compensation amount is not deposited by the BDA or by the State Government before the Court as required u/s 31 of the LA Act. Further contention of the petitioners is that 75% of the land in question is fully developed and the houses are existing and remaining area of about 25% of the land is coconut garden. Basing on the observations made in the case of Offshore Holdings Pvt. Ltd. Vs. Bangalore Development Authority and Others, , the aforementioned reliefs are sought for.

Sri Lakshminarayana., learned counsel for the petitioners contends that the acquisition proceedings have lapsed because of non-taking of possession and non-payment of compensation. He further submits that in the area in question, about 1 acre of land is already fully developed, inasmuch as houses have come up even prior to the acquisition notifications and the Corporation has assessed the tax also.

Learned Government Advocate by filing the statement of objections submits that the possession is not taken till this day and about 75% to 80% of the land is fully occupied by the built houses. Virtually the he supports the stand of the petitioners.

Learned advocate appearing for BDA also submits that the possession is not taken by the BDA and the notification u/s 16(2) of the LA Act is not issued till this day. According to him, the possession cannot be taken in view of the fact that the land in question is developed and houses have come up and the people are residing therein.

From the above, it is clear that the possession is not taken till this day and the notification u/s 16(2) of the LA Act is not issued. Though the award came to be passed on 26.2.1990 and neither compensation is paid nor deposited as required under law.- About 75% of the land in question is already stated to have been developed and houses have come up obviously because of the development in the area in question even prior to acquisition notifications, the BDA did not choose to take possession of the land and did not pay the compensation.

In this view of the above, the only inevitable conclusion that can be reached that the acquisition has lapsed because of the non-taking of possession for a long period and for non-depositing of the award amount. In this context, it is relevant to note the observations of the Apex Court in the case of Prahlad Singh & others vs. Union of India & others, reported in (2011)5 SCC 386, which read thus:-

We have given our serious thought to the entire matter and carefully examined the records, Section 16 lays down that once the Collector has made an award u/s 11, he can take possession of the acquired land. Simultaneously, the Section declares that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of this Section, vesting of the acquired land in the Government takes place as soon as possession is taken by the Collector after passing an award u/s 11. To put it differently, the vesting of land u/s 16 of the Act presupposes actual taking of possession and till that is done, legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiring authority. Since the Act does not prescribe the mode and manner of taking possession of the acquired land by the Collector, it will be useful to notice some of the judgments in which this issue has been considered.

Because of non-taking of possession, vesting of the land is not taken place u/s 26(3) of BDA Act. As vesting of the land has not taken place, the development by BDA cannot be made. Petitioners are not paid compensation till this day.

Hence, it is declared that acquisition in respect of the aforementioned property bearing Sy. No. 49/10 Jakkasandra Village, Begur Hobli, Bangalore South Taluk, measuring 1 acres 9 guntas, including 3 guntas of Kharab has lapsed.

Writ petitions are allowed accordingly.