B.V. Venkatesh vs The State of Karnataka

A.S. Bopanna, J.—The petitioner is before this Court seeking for issue of mandamus to direct the respondent-Bangalore Development Authority to declare that the scheme of further extension of Mahalakshmi Layout (Nandini Layout) stood lapsed by operation of Section 27 of the Bangalore Development Act insofar as the land belonging to the petitioner. The petitioner in that regard is also seeking that the preliminary notification dated 16.11.1977 and the final notification dated 30.08.1979 have lapsed insofar as the land belonging to the petitioner.

The case of the petitioner is that he is the owner of the property bearing Sy. No. 1 (new No. 154) of J.B. Kaval, Yeshwanthapura Hobli, Bangalore North Taluk measuring 1 acre 27 guntas. The said property was notified under the preliminary notification dated 16.11.1977 and the final notification dated 30.08.1979 for formation of further extension of Mahalakshmi layout (Nandini layout) by the respondents. The petitioner contends that despite issue of the said notifications, no further process has been done by the respondents with regard to the award being passed in respect of the said land or possession thereof being taken since structures existed. It is therefore contended that since no layout is formed in the land belonging to the petitioner, the scheme has lapsed insofar as the land of the petitioner.

Respondent-BDA has filed its detailed objection statement. The contention as put forth by the petitioner insofar as the lapse of the scheme as contended has been denied. To indicate that the scheme as such has not lapsed, the details of the land notified under the final notification, the extent to which possession has been taken and the layout formed have been adverted to. In respect of the extent where the layout has not been formed, details of the built up area has been adverted to. Insofar as the land of the petitioner is concerned, it has been admitted that the extent of 1 acre 27 guntas in Sy. No. 154, the possession had not been taken. As it is a built up area, the petitioner had made application dated 27.10.2012 for consideration of his case for de-notification and by keeping in view the judgment of this Court in the case of Junjamma and Others Vs. The Bangalore Development Authority and Others, , the same has been forwarded to the State Government and the State Government by its letter dated 02.01.2013 has sought for further details which has also been furnished. It is therefore contended that though insofar as the land belonging to the petitioner the layout has not been formed as it was a built up area, the prayer as made seeking lapse of the scheme u/s 27 of the BDA Act cannot be accepted.

Learned Government Advocate would contend that after the said particulars have been furnished by the BDA, the respondents would have to look into the same and pass appropriate orders, if the representation is made by the petitioner.

In the light of the above, at the outset, it is necessary to notice that the issue as to whether a scheme could be declared as lapsed by taking into consideration Section 27 of the BDA Act, it would arise in a circumstance where the consideration is to be made keeping in view the entire scheme under consideration. In the instant case, the petitioner has merely contended that insofar as the land belonging to the petitioner situate in Sy. No. 154 measuring 1 acre 27 guntas of J.B. Kaval village, the layout has not been formed and therefore the same be declared as having lapsed which in itself will indicate that in respect of other land the layout is formed. In my opinion, the correct position would be to take note of the statement as put forth by the respondents and thereafter arrive at a conclusion with regard to the relief that may be granted to the petitioner without considering the said layout having lapsed as contended by the petitioner.

To arrive at the conclusion, it would be appropriate to take note of the contents in para 4 of the objection statement which reads as hereunder:

"4. It is submitted that in respect of the land in Sy. no. 154 Measuring 1 acre 27 guntas of land is concerned since there exists buildings award has not been passed and possession of the land was not taken. The petitioner has made an application dated 27-10-2012 to the State Govt. seeking for de-notification of the land in question as per the decision passed in the case of Junjamma Vs. State and other relating to the Sir M. Vishweshwaraiah layout. The State Govt. by its letter dated 2-1-2013 called the status report from the BDA. On 31-5-2013, the BDA sent its status report stating that out of the notified 393 acres 25 guntas of land, award has been passed in respect of 265 acres 01 gunta of land and the award amount of Rs. 14,79,325/- and Rs. 1,95,612/- was paid to M/s. Cresent Dyes and Chemicals vide cheques No. 960280 and 960282 respectively and both dated 15-5-1984, the remaining amount of Rs. 65,09,444-42 was sent to the Civil Court vide Cheque No. 5460255 dated 12-1-1987 and Possession of the land measuring 127 acres 27 guntas of land in Sy. No. 1 of J.B. Kaval was taken on 20-11-1987 and possession of land in Sy. No. 159 and 158 total measuring 37 acres 26 guntas were taken on 30-7-1985 and 31-10-1980 respectively and that no documents were available for taking possession of the land in respect of Sy. No. 154."

(emphasis supplied)

From the perusal of the same, it is clear that in respect of the land to which the petitioner claims title, the respondents admit that there are buildings and therefore the possession of the said land had not been taken. If this categorical assertion on behalf of the respondents is kept in view and if it is further noticed that the preliminary notification in the instant case was issued on 16.11.1977 and the final notification is dated 30.08.1979 and if no further proceedings in that regard has taken place in respect of the land belonging to the petitioner either by drawing up the award for determining the compensation to the said extent or taking possession of the said land for more that 35 years, more particularly in a circumstance when it is admitted that the said area is built up and constructions are existing, though I see no reason to declare the scheme as having lapsed, certainly a declaration would have to be made that the land belonging to the petitioner is not required for the scheme and it is deemed to have been excluded from acquisition.

In a normal circumstance, it would be in the realm of the respondent-Government to exercise its power u/s 48 of the LA Act to de-notify the land in such circumstance. However, in the instant case, since the said exercise has not been undertaken till now from the year 1979, it would be appropriate to declare that the land belonging to the petitioner is deemed to have been excluded from the notification dated 30.08.1979 as no further proceedings has taken place thereafter for the past 35 years. Hence, pursuant to this order, the respondents are directed to issue an endorsement to the petitioner stating therein that the land belonging to the petitioner is not required for the purpose for which it was notified as on 30.08.1979 and that the same stands excluded from the process of acquisition.

With the said direction to the respondents, the petition stands disposed of.