Mahadevaiah vs State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the petitioner and the learned Counsel for the respondents. The petition coming on for preliminary hearing ("B" Group) is considered for final disposal.

The petitioner is said to be a permanent resident of Ganigarapalya, Uttarahalli Hobli, Bangalore South Taluk and is a farmer. He has a large family and were agriculturists holding an extent of 10 acres of land. Their family was entirely dependant on the said land. However, it transpires that the land was notified for acquisition under the provisions of the Bangalore Development Authority Act, 1976 (hereinafter referred to as "BDA Act" for brevity) for the purpose of implementing housing scheme. Consequently, the petitioner was left with 18 guntas of land in the land bearing Survey No. 12/4C(P) situate at Hosahalli, Uttarahalli Hobli, Bangalore South Taluk. 18 guntas of land was spared from acquisition since the petitioner has a house in the said extent where he resides along with his family and his ancestors are buried in the same area in an extent of 5 guntas of land and there are graves existing. The location of the petitioner''s residence as well as the graves in the said extent of 18 guntas of land is indicated in a rough sketch annexed to the petition. The petitioner and his family members were under the belief that the said extent of 5 guntas where graveyard exists would be spared and not covered under the acquisition proceedings. However, the officials of the Bangalore Development Authority are said to have visited the petitioner immediately prior to the filing of this petition and informed him that he would have to vacate the area including the graveyard as the same has been culled out into housing sites and would be allotted to third parties. Aggrieved by this proposed action on the part of the respondent-Bangalore Development Authority, the present petition is filed.

It is the case of the petitioner that notwithstanding large extent of land of the petitioner has been acquired the last remnant portion namely where the petitioner''s residence and graves of his ancestors are present has to be spared from the acquisition proceedings and the petitioner was led to believe that it was indeed out of the scope of acquisition proceedings. The present action on the part of the respondent therefore has compelled him to approach this Court.

It is stated by the learned Counsel for the respondent that 18 guntas of petitioner''s land has not been included in the acquisition proceedings. Out of 5 guntas of land which is the subject-matter of controversy one gunta was utilized for formation of road and 4 guntas including the graveyards of the ancestors of the petitioner have been utilized to form two housing sites which have been allotted to the third parties and therefore would submit that the case of the petitioner being entitled to 4 guntas of land which may contain the graves of the petitioner''s ancestors are not tenable and hence, the petition ought to be dismissed.

The learned Counsel for the respondent has substantiated his pleadings with the relevant documents. However, during the course of hearing, an Advocate Commissioner was appointed to visit the disputed area and to ascertain whether graves belonging to the ancestors of the petitioner could be spared and if an access could be provided for the petitioner and his family to pay respects at the graves, from time to time. The Advocate Commissioner has now submitted his report along with a detailed sketch of the area, which is placed on record. As pointed out by the learned Counsel for the respondent, the house of the petitioner is totally outside the two sites that have been formed in the 5 guntas of land and if an access is provided from the existing house of the petitioner through sites that have been formed to access the graves, it will result in the sites being diminished and would be of no use to the allottees and the narrow path which has to be provided would not place the petitioner at any great advantage. However, if an access as shown in the sketch prepared by the Commissioner is provided from the road on the southern side, shown in brown colour, and if the graves are cordoned off, with space to move around the graves, it would enable the petitioner to visit the graves with an access from the road as suggested by the learned Counsel for the respondent. It would thus be possible for the petitioner also to retain the graves of his ancestors. The respondents who have acquired a large extent of the petitioner''s land could show this indulgence in favour of the petitioner in order to respect the sentiments of the petitioner and his family. Accordingly, the petition is allowed in part. The respondent shall measure and mark the area around the graves, with reasonable space to move around the graves. Since it would require further physical examination and measurement by competent personnel, of the actual area to be marked, it is made clear that rectangular area around the graves be formed and the area be culled out in rectangular form around the graves with an independent access for the petitioner from the southern side as shown in the sketch and execute the necessary conveyance in respect of the said area after it is clearly defined by its boundaries and dimensions. This exercise shall be carried out by the respondent forthwith, in any event, within a period of six weeks from the date of receipt of a certified copy of the order.