B.S. Hemanth Kumar vs The State of Karnataka and Others

Ram Mohan Reddy, J.—Even according to the learned counsel, on instructions of the petitioner, an extent of 65 yards x 65 yards, for short ''land'', said to be located in the Gramadiana of Palya village, belonging to the petitioner is not acquired under the Notification dated 10.1.2013. If that is so, the question of challenging the Notification dated 10.1.2013 Annexure-''AK'' does not arise. If according to the learned counsel, the aforesaid extent of land belonging to the petitioner is not acquired the layout plan No. 88/1995 dated 29.09.1995 Annexure-N prepared by the Bangalore Development Authority, for short ''BDA'' allegedly inclusion of the said ''land'' cannot be either quashed or set-aside so as to exclude the land belonging to the petitioner. Learned counsel when asked to point out to relevant record constituting substantial legal evidence of the extent and measurement of the Palya is unable to do so but submits that reference must be made to several records of the respondents by which such an inference can be drawn. Learned counsel submits that the BDA too has prepared records disclosing that the land belonging to the petitioner supra is excluded from the acquisition proceeding.

Learned counsel for BDA submits that a joint survey disclosed that a certain land in the Gramathana was not acquired the details of which are with the BDA and the Government, although the land acquisition was done by the Government but the layout plan was sanctioned by the BDA.

Learned Government Advocate submits that there is no admission of a fact that petitioner is the owner of the ''land'' and further the award enquiry proceeding would have to be looked into ascertain the existence of the land and the boundary of the land acquired as described in the map prepared prior to the proposed notification for acquisition. If the ''land'' was excluded from acquisition the same would be found in the report as also in the map.

Learned counsel for the Co-operative Housing Society while not denying the fact of addressing letters in the year 1993 referred to by learned counsel for petitioner, nevertheless, submits post those letters, on an enquiry, coupled with the dismissal of the suit instituted by one Sri Bomanna claiming title to the ''land'', applied for and obtained sanction of layout plan inclusive of the ''land''. In other words, according to learned counsel, under a misapprehension, letters were addressed during the year 1993 which when clarified later on were found to be correct, hence the BDA accorded sanction to the layout plan inclusive of the ''land''. Learned counsel hastens to add that the Society does not admit either petitioner''s title or possession of the ''land'' and in addition was not a party to the joint survey except that an official of the society affixed his signature on the mahazar drawn by the revenue official.

In the light of the aforesaid submissions, there is considerable dispute over title to the ''land'' as also over inclusion or exclusion of the ''land'' in the year 1995; as to what went into consideration by the BDA in the year 1995 to sanction the layout plan; the statement of objections of the BDA, is as bald as it can be, hence no inference can be drawn. So also in the absence of relevant material constituting substantial legal evidence of the fact in issue, by looking through the enquiry proceeding before the Special Land Acquisition Officer relating to acquisition of the land, it is not possible to answer questions relating to disputed facts.

In short, this Court exercising writ jurisdiction under Article 226 of the Constitution cannot convert itself into a Civil Court for declaratory relief so as to conclude as to whether or not the ''land'' was acquired and it belongs to the petitioner. The answers to these questions cannot be conveniently adjudicated in a writ proceeding by permitting parties to file affidavits.

Although learned counsel for petitioners submits that there are admissions over title and possession of the ''land'' by the officers of the Government, that by itself and nothing more cannot tantamount to admission of relevant facts under the Evidence Act so as to constitute proof of existence of facts. In any event under Section 101 of the Evidence Act, 1872, requires the petitioner to prove the existence of facts, which cannot be conveniently done in a writ proceeding under Article 226 of the Constitution. In that view of the matter, reserving liberty to the petitioner to institute a suit for declaratory and consequential reliefs, this petition is accordingly rejected.