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Judgment
Anand Byrareddy
The facts of the case are as follows :-
Petitioner no. 1 is said to be a constituent of a partnership firm, namely, M/s. Khoday Eshwarsa and Sons. Petitioner no. 2 is a private limited company. The petitioners are said to be engaged in the business of trading, manufacture and sale of liquor. The petitioners had purchased the lands in Konanakunte, and Doddakalasandra, Bangalore South Taluk, during the period 1967 to 1973 and claim to be in possession of the same and are said to have set up their manufacturing unit and administrative offices in the said lands.
By a notification issued u/s 17(1) of the Bangalore Development Authority Act, 1976 (Hereinafter referred to as the ''BDA Act'', for brevity) dated 17.11.1988, the lands in question were sought to be acquired for the formation of Jaya Prakashnarayan Nagar 9th Stage Layout and a declaration was made u/s 19(1) of the BDA Act dated 22.7.1991.
The said notification u/s 19(1) was subject matter of challenge in several writ petitions by the land owners, whose lands were notified for acquisition. A learned Single Judge of this Court in writ proceedings in WP 4046/1993, has quashed the notification by an order dated 27.9.1996, on the ground that the same had been issued without the mandatory sanction u/s 18(3) of the BDA Act, thereby rendering the acquisition void. However, liberty was reserved to the acquiring authority to initiate fresh acquisition proceedings. The said writ petition having been referred to a division bench, the division bench had decided on the applicability of Section 6 and Section 11A of the Land Acquisition Act, 1894 (Hereinafter referred to as the ''LA Act'', for brevity) to acquisitions under the BDA Act and had dismissed the petitions by order dated 6.3.1997, without otherwise addressing the factual matrix of any of the petitions. However, the other petitioners had challenged the order of the division bench before the apex court, which decided the case by its judgment dated 27.2.2002, observing that the Bangalore Development Authority (Hereinafter referred to as the ''BDA'', for brevity) had accepted the judgment of the learned Single Judge in WP 4046/1993 and the same had become final and therefore, the final notification issued without the required mandatory sanction under the BDA Act was invalid.
The petitioners claim that they have been in possession of the land in question and continued to be in possession as on the date of the petition. The petitioners are said to have made applications seeking grant of conversion of lands for industrial purposes. Petitioner no. 1 is said to have made three applications dated 17.3.2011 and 25.3.2011 in respect of several items of land, in terms of Annexures-G, G1 and G.2 to the writ petition. Similarly, the second petitioner had also made an application dated 17.3.2011 seeking conversion of land in Doddakalasandra in terms of Annexure-G.3.
The second respondent, on receipt of the applications, is said to have sought for a No Objection Certificate from respondent no. 5-the planning authority. The said respondent had informed the second respondent that the lands were classified as for industrial use under the Zonal Regulations in terms of the approved revised Master Plan 2015 and any Conversion Certificate could be granted on identifying an approach road and after obtaining opinion on the status of acquisition of the said lands from the BDA.
It transpires that the Special Land Acquisition Officer of the BDA, had submitted reports dated 30.6.2011, 2.7.2011, 17.9.2011 and 14.6.2011, to report that the lands, for which Conversion Certificates were sought, were notified for acquisition under the 1991 final notification, for the formation of Jaya Prakashnarayan Nagar 9th Stage layout. Significantly, it was indicated that though the lands were so acquired, no award has been passed nor possession is taken by the State Government. Based on the above reports, the fourth respondent had issued an endorsement refusing to grant conversion certificates notwithstanding that the fourth respondent had stated that no award had been passed nor possession had been taken, therefore indicating that the acquisition had remained incomplete. It is also the case of the petitioners that three items of land in survey Nos. 35/1, 35/2 and 36/2A in Doddakalasandra were not notified for acquisition. But inspite of the same, the second respondent had refused to grant conversion on a misconception that the same were also subject matter of the acquisition proceedings. This was an indication of the mechanical functioning of the second respondent. It is in the above background, that the present petitions are filed, claiming that the acquisition proceedings have lapsed and therefore, the rejection of the applications of the petitioners seeking conversion is bad in law and unsustainable.
The learned Senior Advocate Shri D.L.N. Rao, appearing for the Counsel for the petitioners, while reiterating the above sequence of events, would emphasize that the final notification was of the year 1991, but there is no dispute that no award u/s 11 of the LA Act has been passed and possession of the lands also has not been taken. This inaction for the past two decades from the date of final notification would automatically result in the acquisition proceedings having lapsed and the same cannot be acted upon. The apex court has also declared that the final notification dated 22.7.1991 was issued without the required mandatory sanction and was invalid. Notwithstanding that there is no time-frame prescribed under the BDA Act, for making an award, or for taking possession of the land, it is established and is the settled law, that even in the absence of any such time frame being prescribed, the said procedure ought to be complied with within a reasonable time and since no award has been made even after a lapse of 20 years and even if there is any attempt by the State Government to make an award after the expiry of such a long period, the same would be futile because, the reasonable time contemplated in law has lapsed.
It is contended that the apex court, in a large number of decisions, has repeatedly laid down that even though an award is passed, if no physical possession is taken within a reasonable time, the acquisition proceedings would lapse. In the instant case, as no attempt was made by the State Government to even make an award and take possession of the lands, the acquisition proceedings have lapsed and neither the State Government nor the BDA would have any right over the land in question.
Reliance is placed on the following authorities in support of the above contentions:
Muniyamma vs. State of Karnataka, 2007 (5) KLJ 11,
Bangalore Development Authority vs. Muniyamma and others, WA 936/2007
Bangalore Development Authority vs. Muniyamma and others, SLP 20190-91/2009
State vs. Gokul Educational Foundation, 2005 (6) KLJ 429,
Ramchand and others vs. Union of India, (1994) 1 SCC 45
Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim, ,
Saroj Agencies vs. State of Karnataka, WA 8643/1996,
J. Rama vs. M. Vittal Bhat and others, ILR 2011 KAR. 5637,
D. Narayanappa vs. State of Karnataka and others, ILR 2005 KAR. 295,
Chikkaboraiah vs. State of Karnataka and others, ILR 2003 KAR. 3667,
Mrs. Poornima Girish vs. Revenue Department, 2011 (2) KLJ 142,
Offshore Holdings Pvt. Ltd. Vs. Bangalore Development Authority and Others, .
The learned Counsel for respondents 3 and 5, on the other hand, would contend that the present writ petition is not maintainable for the reason that the final notification dated 22.7.1991 was subject matter of challenge by the very petitioner in WP 21423/1992, which was dismissed on 6.3.1997 by this court. Therefore, the present writ petition on the very same challenge is not only barred on the principle of res judicata, but is also barred by delay and laches. Therefore, the same would have to be rejected at the threshold.
Without prejudice to the same, it is further contended that the lands in question are admittedly subject matter of acquisition proceedings and the same having been subject matter of challenge in WP 4046/1993, this court had disposed of the petition along with a batch of writ petitions, quashing the final notification insofar as the same related to the lands of the writ petitioners therein, reserving liberty to the BDA to proceed with the acquisition in accordance with law. But the writ petition filed by the petitioners had been referred to a division bench along with other writ petitions and the division bench having dismissed the petition of the petitioners by its order dated 6.3.1997 and even though some of those petitioners, who were before the division bench having filed Special Leave Petitions before the apex court, the petitioner had not carried the matter to the apex court and hence would not be in a position to claim any benefit of any orders passed by the apex court in appeals in CA 5772/1997 dated 27.2.2002.
It is further pointed out that though the BDA has not passed any award till date, in respect of the lands involved in the petitions, the lands are certainly subject matter of a Scheme for the formation of Jaya Prakashnarayan Nagar 9th Phase, for which a final notification was issued and since most of the lands under the said notification were government lands, there is no infirmity in the proceedings. In the light of the admitted position that neither an award had been passed nor possession was taken, notwithstanding that there was no impediment for the acquiring authority to do so in respect of the lands in question, it then becomes necessary to merely address the position of law insofar as the lands which are the subject matter of acquisition proceedings and in respect of which, even after long lapse of time, neither an award is passed nor possession is taken. And whether the acquisition proceedings can be said to be alive and whether the land owners can be deprived of their respective lands, which may be the subject matter of the notifications for compulsory acquisition.
In Muniyamma vs. State of Karnataka, supra, it is underlined that Section 16(2) of the LA Act, refers to the power of the authority to take possession of the land after passing an award and it is only on taking of such possession, that the land would vest absolutely in the State free from all encumbrances. Though under the LA Act, no particular mode of taking possession of the land is contemplated, it is now well settled that it cannot however, be symbolic possession, but it should be actual physical possession of the land. This would depend on other factors, including the nature of the land and the circumstance whether it is susceptible to taking of physical possession and hence there was no hard and fast rule as to what act would determine and constitute taking over possession of the land.
The said view has been affirmed by a division bench of this court in Bangalore Development Authority vs. Muniyamma in WA 936/2007 dated 11.12.2008 and though a SLP was filed by the BDA against the said judgment, in SLP 20190-199/2009, the same was dismissed as withdrawn.
In State of Karnataka vs. Gokul Educational Foundation, the above view is further emphasized while drawing attention to a judgment of a three-judge bench of the apex court in Balwant Narayan Bhagde Vs. M.D. Bhagwat and Others, , to the following effect:-
We think it is enough to state that when the Government proceeds to take possession of the land acquired buy it under the Land Acquisition Act, 1894, it must take actual possession of the land since all interests in the land are sought to be acquired by it. There can be no question of taking ''symbolical'' possession in the senses understood by judicial decisions under the Code of Civil Procedure. Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the government is the taking of actual possession of the land. How much possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not therefore, be taken as laying down an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case.
It is then noticed in the division bench judgment of this court, that under the BDA Act, the State Government is the authority to acquire the land. Vesting of the acquired land in the State Government in terms of Section 16 of the LA Act, would not automatically vest such land in the BDA. If the land is acquired by the State Government under the BDA Act, the scheme of the Act would indicate that after the award is passed, the State Government is required to take possession and thereafter it may transfer the acquired land to the BDA and further in terms of Section 36 of the BDA Act, particularly, Sub-Section (3) of Section 36, there is a mandate to transfer the acquired land to the BDA on payment of costs of the acquisition and upon the BDA agreeing to pay any further costs, which may be incurred by the State Government on account of the acquisition and only on such transfer in favour of the BDA, the acquired land would vest in the BDA.
Reliance sought to be placed on Ramchand and others vs. Union of India; Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim; Saroj Agencies vs. State of Karnataka and J. Rama vs. M. Vittal Bhat and others, supra, is for the proposition that non-exercise of statutory power on the part of the authorities, when not enjoined by the provisions of law, to complete the acquisition proceeding within a time frame, the authorities were not at liberty to proceed with the acquisition proceedings, without making an award or paying compensation within a reasonable time. It is emphasized that thought the BDA Act does not prescribe the period of limitation for making an award and taking of possession, the same would have to be read into the Act.
In D. Narayanappa vs. State of Karnataka, supra, with reference to the Scheme of the City of Bangalore Improvement Act, 1945, which was replaced by the BDA Act, this court has held that where a Scheme was not executed within seven years from the date of declaration and though the Scheme had been executed substantially, the Scheme had lapsed for non-execution of the same within seven years and even though possession had been taken more than 12 years from the date of declaration, it was still held that the Scheme had lapsed. This court also opined that it amounted to abandonment of the Scheme insofar as the land in question is concerned and the Scheme could not be revived at a remote point of time, merely in exercise of the power conferred under the Act if it was not exercised, within a reasonable period.
In Chikkaboraiah vs. State of Karnataka, supra, it was held that though the Government had acquired large extents of land for purposes of executing a Scheme framed by it, possession had not been taken immediately after the declaration u/s 19(1) of the BDA Act and for a period of over 13 years, the Government or the BDA had not taken any steps to take possession of the land and therefore, it was concluded that the State Government ought to have taken possession atleast within five years from the date of declaration to execute the Scheme. If possession itself was not taken for over 13 years, that the acquisition proceedings ought to be held as having lapsed.
In Poornima Girish, supra, it was held that if the acquisition proceedings had become state and inconclusive, on account of the possession of the lands not having been taken, though notified for acquisition under the BDA Act, the notifications will not automatically enure to the benefit of the authority.
In Offshore holdings vs. Bangalore Development Authority, supra, the apex court has, while interpreting the scope of Sections 27 and 36 of the BDA Act, held that where a Scheme lapses, the acquisition may not. In other words, when the land has vested in the state Government in terms of Section 16 of the LA Act, the acquisition would not lapse or terminate as a result of lapsing of the Scheme u/s 27 of the BDA Act. It is held that on vesting, the land stands transferred and vested in the State free from all encumbrances and such status of the property is incapable of being altered by friction of law. Neither the BDA Act nor the LA Act contain any provision, in terms of which, the property once absolutely vested in the State can be reverted to the owner on any condition. There is no reversal of the title and possession of the State. However, this may not be true in cases where the acquisition proceedings are still pending and the land has not vested in the State in terms of Section 16 of the LA Act.
(Emphasis supplied)
The legal position emanating from these authorities is not in dispute as being applicable to the facts of this case, in that, it is not disputed that possession of the land of the petitioners has not been taken and even an award has not been passed. The final declaration is of the year 1991. Hence, it can be said that the settled legal position would apply on all fours to the present case on hand.
The only other contention of the learned Counsel appearing for the respondents is that the present petition is barred by res judicata, as the very petitioner no. 1 had challenged the acquisition proceedings in respect of the land in question in the first instance and had allowed the same to attain finality and therefore, cannot seek the benefit of the acquisition proceedings having been set at naught in an appeal before the apex court.
Insofar as this contention is concerned, the cause of action for the present petition is the abandonment of the acquisition proceedings, as it were, by the State and the long interval of time from the date of final declaration, during which the State has remained dormant, without taking any further steps. Therefore, it cannot be said that the petition ought to be rejected as being barred by res judicata or vitiated by delay :and laches.
Accordingly, the writ petitions are allowed. The acquisition of lands of the petitioners culminating in the final notification dated 22.7.1991 vide Annexure-C have lapsed and it is so declared.
Consequently, the endorsements at Annexures-A, A1, A2 and A3, proceeding only on the basis that the lands of the petitioners are subject matter of acquisition proceedings are bad in law and are hereby quashed. The second respondent is directed to reconsider the applications of the petitioners at Annexures-G to G-3 for issuance of conversion, as prayed for in accordance with law.